McLean v. Arkansas Board of Education

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McLean v. Arkansas Board of Education 529 F. Supp. 1255, 1258-1264 Decided: January 5, 1982

McLean v. Arkansas Board of Education was a lawsuit heard before a United States District Court judge from December 7 to December 17, 1981. The intent of the complaint was to verify the constitutionality of a statute requiring that creation science be taught alongside evolution in Arkansas public schools.

The suit charged that the state law violated the First and Fourteenth Amendments. The plaintiff, The Reverend William McLean, a United Methodist minister, was no doubt chosen in order to suppress criticism that the action pitted science against religion. Other plaintiffs included clergy, religious organizations, parents, educators, educational organizations, and a state legislator.

This case was unusual in that testimony under oath from both scientists and creationists was recorded.

History

Enacted amid the revival of American fundamentalism, Initiated Act 1 of 1929 prohibited the teaching of evolution in Arkansas public schools. This law was finally deemed unconstitutional in 1968 by the U.S. Supreme Court in Epperson v. Arkansas.

In 1978, Yale Law School student Wendell Bird wrote a noteworthy article arguing that the U.S. Constitution required the teaching of scientific creationism in public schools. Bird reexamined this argument in an article appearing in an Institute for Creation Research periodical in March of 1979. This article mentioned the earlier Yale Law Journal article in a footnote about the author.

In January of 1979, the ICR put out an article detailing one Paul Ellwanger's recent success in persuading an Anderson, South Carolina, school board to adopt a resolution to teach creationism. Included in the Impact article was a copy of the proposal to the board, which listed Bird's law journal piece as a reference. In their article, the ICR claimed that a director for the South Carolina Department of Education had concluded that Ellwanger's proposal could be implemented locally without intercession from the State.

In May of 1979, the ICR published a resolution, also authored by Bird, "concerning balanced presentation of alternate scientific theories of origins." An editor's note indicated this resolution was intended to be a model for local school boards that wished to adopt a policy of teaching scientific creationism.

In 1981, Arkansas State Senator James L. Holsted introduced Act 590, which was known by the short title of the "Balanced Treatment for Creation-Science and Evolution-Science Act." Senator Holsted admitted he later came to understand that the model for the bill had come to him through Ellwanger. The wording for the bill was very similar to that of the resolution written by Bird, particularly in the "Clarifications" and "Legislative Findings of Fact" sections. A notable exception was the elimination of the term "scientific creationism" in favor of "creation-science" in the actual bill, a substitution advocated by Ellwanger.

After it was briefly reviewed by the legislature, Arkansas Act 590 was signed into law by Governor Frank White on March 19, 1981.

Decision

On May 27, 1981, the plaintiff filed this lawsuit, blocking implementation of Arkansas Act 590. The court heard testimony in December of 1981. On January 5, 1982, the judge ruled in favor of the plaintiff that the law was unconstitutional, concluding, "No group, no matter how large or small, may use the organs of government, of which the public schools are the most conspicuous and influential, to foist its religious beliefs on others."

The defendant did not appeal the decision. Although Edwards v. Aguillard tested the constitutionality of a similar law in Louisiana and made it to the Supreme Court in 1987, no expert testimony was heard in that case.

Participants

Judge William Overton in 1982.

Judge

In 1964, William Ray Overton graduated from the University of Arkansas School of Law, where he was entrusted with the position of their law review editor. Overton presided as a United States district judge from 1979 until his death due to cancer in 1987 at age 57. The sole evaluator of the evidence presented during this trial, he felt free to interject with questions throughout. Overton was widely praised for the scholarship of his written decision in this case.

Attorneys for the plaintiff

The plaintiff called upon the American Civil Liberties Union of Arkansas to manage the case. Individuals secured by the ACLU for purposes of trial and pretrial investigation included the following:

Bruce J. Ennis was national legal director for the ACLU from 1976 through 1981. He was also a director for the Immigration and Naturalization Service and managing partner of the Washington, D.C. office of the Jenner & Block law firm. His specialties were constitutional law, appellate practice, and commercial and civil litigation, including tax, antitrust, media, and telecommunications, and breach of contract. During his career, he appeared in over 250 cases before the United States Supreme Court. He served on law committees and was respected as an author. His professionalism earned him selection by The National Law Journal as one of America's one hundred most influential lawyers in 1994. Ennis died in 1990 at the age of 82.

Jack D. Novik worked for the American Civil Liberties Union in New York City from 1976 to 1986, during which time he held the positions of national staff counsel and acting legal director. He also argued for the appellees in Edwards v. Aguillard and was executive director of the New York City Criminal Justice Agency. Novik died of lung cancer in 1988 at age 42.

Robert M. Cearley, Jr., born in 1944, graduated from the University of Arkansas School of Law in 1969. At the time of this case, he was employed by Cearley, Gitchel, Mitchell & Bryant in Little Rock, Arkansas, and now specializes in personal injury, wrongful death, products liability, commercial litigation, breach of contract, business torts, civil practice, and negligence cases at Cearley Law Firm, P.A., also of Little Rock. Cearley was past president of the Arkansas Bar Association and is an award-winning lecturer.

Philip E. Kaplan, at the time of this case, was employed by Kaplan, Hollingsworth, Brewer & Bilheimer in Little Rock. He served as an adjunct professor at the University of Arkansas School of Law from 1978 through 1998. Kaplan now works at Williams & Anderson PLC of Little Rock, where he specializes in labor and employment, commercial, and complex and multi-district litigation.

The New York City law firm of Skadden, Arps, Slate, Meagher & Flom offered their services to the Arkansas ACLU free of charge. They made available the following attorneys.

David Klasfeld worked for three mayoral administrations, was executive vice president of the New York Convention and Visitors Bureau, and in 2000 became deputy to the office of New York's schools chancellor. In the pretrial interview, Klasfeld asked defendant's witness W. Scott Morrow, "If Arkansas and South Carolina voted to teach that we were at war with England and Germany was on our side in World War II, that should be taught in history class?" It turns out lawyers are good for something — pwning creationists.

Klasfeld also asked Morrow, "Are the aspects of Creation Science, as defined in the Statute, testable?" and, in an apparent reference to Last Thursdayism, "How would you distinguish between the creationists' model and sort of a model that would hypothesize that a Creator made the world yesterday and implanted within us the memories that there existed a time before that?" Additionally, Klasfeld asked Morrow, "Is there good evidence for Creation of Science?", to which Morrow answered, "I think it is better than the two things that you mentioned. We can certainly disprove the Flat Earth Theory by flat out experiments. Phlogiston was discarded quite a bit ago." "So was [creation science]," noted Klasfeld.

Laurie R. Ferber began her career as an associate at Skadden, Arps, Slate, Meagher & Flom in 1980. From 1987 to 2008, she held several significant positions at the financial services of Goldman Sachs & Co. She has been employed as an associate at Schulte, Roth & Zabel, general counsel for investment banker Drexel Burnham Lambert Trading Corp., and general counsel and chief regulatory officer for International Derivatives Clearing Group, LLC. She joined MF Global Holdings Ltd. in 2009 as general counsel and a member of the office of the CEO. Additionally, Ferber has served on numerous professional boards and committees.

Ferber, in the pretrial interview with Morrow, noted, "I'd like to know what tools a tenth grader brings to the classroom by which he's going to understand [what that] is being taught to him is a science, and what is not a science". She also asked him, "Are any unsettled areas, scientific disputes, currently taught to school children?" and, "Isn't it likely that their understanding of origins is muddled not because of what they learned in the classroom, but because it conflicts with religious [teachings]?" Ferber further asked Morrow, "What happens to the student who is taught Creation Science, believes Creation Science, and wants to grow up and work for Mobil and/or Exxon?", to which he could only answer, "They probably won't be very good working for Mobil and Exxon drilling for oil."

Anthony J. Siano, born in 1948, was admitted in 1972 to the U.S. District Court in New York and the U.S. Court of Appeals. He was an attorney for the U.S. Department of Justice, Organized Crime and Racketeering Section, from 1983 through 1989. From 1989 through 1997, he was an assistant U.S. attorney for the Southern District of New York. His current practice areas include fraud issues, trial practice, civil litigation, commercial and business law, torts, and securities. Siano has been an adjunct faculty member at Fordham University School of Law since 1982.

Thomas M. Lahiff, Jr., is currently a member of the Forensic Technology Solutions practice at professional services firm PricewaterhouseCoopers, where he specializes in information and records management and electronic discovery readiness. He has been an assistant general counsel in Citigroup Inc. He is a lecturer and a former adjunct professor at New York Law School. Pre-trial, Lahiff asked defendant's witness Wayne Frair, "How many original created kinds were there?"

Stephen G. Wolfe was also an attorney for the plaintiff. During pretrial questioning, Wolfe asked defendant's witness Margaret Helder, "Doctor, have you any view on how the green algae which cannot live without light did in fact live during the creation week prior to the creation of the sun?"

Attorneys for the defendant

J. Steven Clark was attorney general of the State of Arkansas at the time of this case. He held this position from 1979, when it was vacated by Governor-elect William Clinton, until he was indicted in July of 1990 due to his use of state credit cards for personal trips. He was subsequently convicted on a felony charge of "theft of property by deception" and fined. Clark is now a visiting professor, attorney, and, ironically, a certified fraud examiner. He is also the chief executive officer of the Fayetteville Chamber of Commerce.

David L. Williams was the Arkansas deputy attorney general at the time of this case. He was admitted to practice law in Arkansas in 1978. Williams currently practices litigation as a partner at Kutak Rock LLP in Little Rock.

Frederick "Rick" K. Campbell was an appointed assistant attorney general to the State of Arkansas at the time of this case. He was admitted to practice law in Arkansas in 1978. Campbell is now a member of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., in Little Rock, and he specializes in administrative and regulatory law.

Callis L. Childs was an appointed assistant attorney general to the State of Arkansas at the time of this case. He is now a personal injury lawyer with a really big Internet ad.

Witnesses for the plaintiff

Senator James L. Holsted, Democrat, North Little Rock, was the initiator of the bill and a hostile witness for the plaintiff. In his pretrial interview, he acknowledged being a born-again Christian with a literal belief in the Biblical book of Genesis. On January 16, 1982, shortly after the conclusion of this trial, he resigned his office amidst charges of stealing $105,000 from his family-owned insurance company. He pleaded guilty to making false statements and received a fine and probation. He was 37 at that time.

Other witnesses for the plaintiff included Bishop Kenneth Hicks, Father Francis Bruce Vawter, Dr. George Marsden (professor of history), Dorothy Nelkin (professor of sociology), Dr. Langdon Gilkey (professor of theology), Dr. Michael Ruse (professor of philosophy), Dr. Francisco J. Ayala (professor of genetics), Dr. G. Brent Dalrymple (geologist), Dr. Harold Morowitz (professor of physics and chemistry), Dr. Stephen Jay Gould (professor of geology), Dr. Dennis R. Glasgow (science curriculum development coordinator), Ronald W. Coward (biology and psychology teacher), Bill C. Wood (science teacher), Ed Bullington (social science teacher), Marianne Wilson (science coordinator), and Dr. William V. Mayer (professor of biology).

Witnesses for the defendant

Donald Ernest Chittick explained pre-trial that his background included a Ph.D. in physical chemistry from Oregon State University. He admitted to being an active Quaker, a member of the Creation Research Society, and a creation scientist. He also admitted his belief that the Bible is historically and scientifically true and that "the Genesis account is an accurate historical record." Chittick has been an adjunct professor of chemistry at the Institute for Creation Research since 1988.

Physicist Robert V. Gentry acknowledged pre-trial to being an active Seventh-Day Adventist, a former member of the American Scientific Affiliation, and a voting member in the Creation Research Society with membership in the latter dating "back to the formative days of the organization." He admitted his belief that the creation account in Genesis is literally true and that "because the scriptures have their ultimate source in the Deity or God...the original autographs are without error." He affirmed that "until, such time as a falsification evidence comes in, then I will remain a Creation Scientist".

Biochemical taxonomist Wayne Frair is credited with being largely responsible for the development of the field of baraminology. He was president of the Creation Research Society from 1986 through 1993. He coauthored The Case for Creation (1972), and his writings appeared in In Six Days: Why Fifty Scientists Choose to Believe in Creation (1999). He has admitted that he accepts the Bible as literally and historically true. He has taught at King's College in New York, employment at which necessitates the signing of its statement of faith, including affirmation of the inerrancy of the Bible. Pretrial, Frair admitted to subscribing to the statement of faith of the Creation Research Society, which includes belief in the historical accuracy of the Bible.

Biologist Ariel Adrean Roth is the author of "Origins, Linking Science and Scripture" (1998), and his writings appear in In Six Days: Why Fifty Scientists Choose to Believe in Creation. His testimonial in the latter work proposes that the Bible contains the explanation for origins. He was formerly director of the Geoscience Research Institute.

Philosopher Norman Geisler acknowledged being a member of the American Scientific Affiliation and the International Council on Biblical Inerrancy and to have participated in the publishing of papers sponsored by the latter organization. The ICBI includes in its statements of faith the affirmation that the Bible "is true and reliable in all the matters it addresses" and the denial "that scientific hypotheses about earth history may properly be used to overturn the teaching of Scripture on creation and the flood." In fact, Geisler admitted, "I take the position that the Bible is factually inerrant." He additionally admitted that "dealing with demon possessed people, exorcisms, the study of the UFO phenomena, the study of the occult" confirmed the existence of Satan.

Geologist Harold G. Coffin acknowledged being a voting member of the Creation Research Society and a fundamentalist Christian. Additionally, he has been a professor at the Seventh-Day Adventist-sponsored Geosciences Research Institute. He admitted his belief that the Bible is "historically and scientifically true with the exception of minor problems" and agreed that Genesis is "accurate history" and literally true. He admitted his belief in the historicity of the Flood, remarking that "it took place just a few thousand years ago." He explained, "My belief as far as the time of the flood is concerned is based largely on Scripture." He also explained, "My opinion, not so much based on science as based on my confidence in Scripture, is that it is just a few thousand years old, life upon this Earth."

Botanist Margaret Helder acknowledged being vice president of the Creation Science Association of Alberta (CSAA) as well as a writer for the organization's Creation Dialogue magazine. She denied that the CSAA was a religious organization despite admitting that its statement of principle "affirms assent with the six-day creation week, with a deluge in the time of [Noah] and a belief in Christ as savior." The CSAA's mission statement is, "To provide encouragement and resources to persons who desire good scientific information which conforms to the Bible." She admitted, "Creationism was taught to me as a child by my parents." She further admitted that her belief that the Bible is inerrant was an "a priori assumption" derived from the articles of the Anglican Church. Helder is billed by Answers in Genesis as "probably the most prominent woman in creation science."

Curriculum specialist Larry R. Parker admitted in his testimony that he was not a scientist.

Chemistry teacher Jim Townley mentioned that he was a Protestant deacon.

Biochemistry professor W. Scott Morrow stated that he disagreed with most of the points that were identified in Act 590 as defining creation science. In fact, he admitted, "I'm not testifying in support of Creation Science." He did mention, "I get something from Paul [Ellwanger's] group, the name of which I forget, [Citizens for Fairness in Education] and I'm on the mailing list of the Institute for Creation Research." Regarding his admission to being vice president of the creationist group Arkansas Citizens for Balanced Education in Origins, the following interchange ensued:

Q [Klasfeld] ...Are you a citizen of Arkansas?

A [Morrow] Not to my knowledge.

Q Where do you reside?

A South Carolina, Spartanburg.

Klasfeld subsequently asked Morrow, "How does it come that a nonresident of Arkansas is the Vice-President of the Arkansas Citizens for Balanced Education and Origins?" Morrow admitted to testifying before the South Carolina General Assembly Education Committee in regard to the South Carolina Creation Evolution Law. He admitted that he does not like the ACLU. He also admitted to believing in UFOs.

Astronomy professor Nalin Chandra Wickramasinghe is not a creationist, believing instead that life originated in outer space, and as such he was a strange candidate as a witness for the defendant. Pre-trial, he admitted that he disagreed with five out of the six points that the act identified as defining creationism. In his written decision, Judge Overton stated, "The Court is at a loss to understand why Dr. Wickramasinghe was called in behalf of the defendants."

Former biology professor Dean H. Kenyon, an intelligent design proponent and coauthor of Of Pandas and People, came to Little Rock to be deposed, but fled prior to doing so on the advice of attorney Wendell Bird.

Other notable figures

Wendell Bird, then a staff attorney for the Institute for Creation Research, was a former editor of the Yale Law Journal and later became a senior partner at an Atlanta law firm. He authored several works that inspired the writing of Act 590.

Paul Ellwanger founded the South Carolina creationist organization Citizens for Fairness in Education, and he wrote the model for Act 590. According to this suit's decision, Ellwanger is "a respiratory therapist who is trained in neither law nor science."

Depositions

The pretrial questioning, or depositions, of witnesses took place in November and early December of 1981. The purpose of a deposition is to allow an attorney to prepare his or her case by questioning an opposing witness to determine the scope of the testimony that he or she intends to present. To illustrate, consider the following pretrial exchange between plaintiff's attorney Thomas M. Lahiff and defendant's witness Wayne Frair:

Q [Lahiff] Do you believe that the Bible is literally true?

A [Frair] What do you mean by literally true?

Q What do you mean by literally true?

A You are the one that asked the question.

Q I would like your understanding. That is the purpose of a deposition, is to get your understanding.

That some of the witnesses did not remotely understand the purpose of the depositions is illustrated by this exchange between defendant's witness W. Scott Morrow and plaintiff's attorney David Klasfeld:

A [Morrow] Am I allowed to ask you questions? No.

Q [Klasfeld] No.

A So be it.

Q That's one of the glories of the deposition process -- the lawyer asks the question, and the witness gives the answers.

A I take it you're on the other side. You know, I don't really know.

Q I'm on the other side.

Klasfeld additionally explained to Morrow, "The point of the questioning and the answers is not for you to define the importance of it but to answer the question."

In fact, in order for the attorneys to identify the areas of the witnesses' testimony, it is essential that the witnesses answer all questions asked. When Klasfeld asked Morrow why he had changed his name, Morrow responded, "Frankly, that's none of your business," whereupon Klasfeld immediately repeated the question. Defendant's witness Margaret Helder attempted to refuse to define the difference between prior assumptions and religion, but she later relented and answered the question.

At times, individual attorneys seemed to use the deposition as an opportunity to debate with creationists. Upon defendant's witness Harold Coffin presenting the young age of the Mississippi River delta as evidence of a young Earth, Klasfeld asked him, "Why does that provide us with any information about the surface of the earth?"

Attorneys often had experts in attendance at the depositions in order to assist them in completing the questioning. For example, Dr. Eugene Gaffney and Dr. Richard Zweifel, both of the Museum of Natural History, were documented as having been present at Frair's deposition. In fact, at one point, defendant's attorney David L. Williams objected to a question on the grounds that he could not understand it, and the following exchange ensued:

Q [Lahiff] Do you understand the question?

A [Frair] I think I understand the context which Dr. Gaffney is asking it.

Q I am asking the question.

A Same thing as you asking the question.

Q I am asking the questions.

MR. WILLIAMS: We can maintain that illusion if you'd like.

Q There is absolutely no illusion. I am asking the questions. Unfortunately Dr. [Frair] is not answering them."

Depositions can be quite lengthy and exhausting. During his, defendant's witness Jim Townley noted, "For the record, that after being on this for over five hours, it seems like, that one does get tired. And I'll put that in the record." He also remarked, "I'm going to miss the Arkansas football game, that I can already see."

The depositions of both plaintiff and defendant's witnesses are available online.

The issues

What makes this case interesting is that witnesses were given the opportunity to testify on the issues concerning the evolution versus creationism debate. This included statements in depositions as well as testimony given during the actual trial. Note that, although the testimonies of the defendant's witnesses have been lost, secondhand accounts of portions of them are available.

Also note that quotes presented herein derive from transcriptions of conversations, and they undoubtedly contain errors. At times, ellipses and bracketed phrases have been used in an attempt to improve clarity. Quotes were taken from witness depositions, unless otherwise noted, and subheadings were nearly without exception borrowed from Talk Origins' refutations to creationist claims.

Fairness demands evolution and creation be given equal time

The primary issue in this case was that of equal time as was evident by the short title of the act, "Balanced Treatment for Creation-Science and Evolution-Science Act." Defendant's witness W. Scott Morrow had this to say on what he saw as the unfair exclusion of creation-science from the classroom:

Now, we get down to basics, as far as I am concerned. You guys essentially are putting yourselves in the position of the State of Tennessee about the middle of the 1920's. You want to close out other ways of reasoning through the evidence. And rather interestingly, what could be called our side is in the position that [S]copes [was] in a very broad general way of understanding. You fellows want a close forum for your own pet model. And if I may continue, you want to do it at public expense, yes. Government schools are run by taxpayers' money. You won't make it voluntarily. It's like a lot of other things that I think again that the ACLU wants. You don't like voluntaryism when it touches on the things that are really important. You fail to see relationships where they are absent. And also difficulties where they are absent. (Thereupon, an off-the-record discussion was held.)

Morrow also remarked that "people have to get the kind of education that they think their kids ought to have."

Plaintiff's attorney Laurie Ferber recognized the flaw in this argument, asking Morrow, "What credentials does a parent have that [enlightens] them as to what [should] be taught to a student in a science class?" Plaintiff's witness Stephen Jay Gould noted that "the very fact empirically that some people have that claim doesn't mean it should be taught." In the decision, Judge Overton noted that "knowledge does not require the imprimatur of legislation in order to become science." He concluded, "The application and content of First Amendment principles are not determined by public opinion polls."

Intelligent design theory is not religious

A central legal issue concerning the act was whether teaching "creation-science" constituted religious instruction and, therefore, violated the Constitution. Morrow agreed that "creation-science" was no more religious than is evolution. A disclaimer in the law itself noted, "This Act does not require or permit instruction in any religious doctrine."

However, Section 7(e) of the act stated that teaching evolution "hinders religious training," revealing that the law's author held religious concerns. Additionally, the act's definition of creation-science included, "Explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood," which implied it is based on a religion, specifically Christianity. Defendant's witness Norman Geisler admitted that Subdivision 2 implied God created the universe and everything in it. Additionally, he admitted, "I think the whole creationist science model implies the existence of God. I think that’s what it’s all about. I would find it absurd to talk about creationism with no God. After all, creation implies a creator."

Plaintiff's witness James L. Holsted, the senator who presented the original bill in the legislature, agreed in his testimony that deeply held religious convictions motivated him to present the bill. He also agreed that the act favored the view of biblical literalists and that its strongest supporters would be fundamentalist Christians.

Per Judge Overton's written decision, Paul Ellwanger, creator of the bill, admitted in his deposition, "I view this whole battle as one between God and anti-God forces." Ellwanger also admitted, "I've seen a lot of interest among Christians and I feel, why not exploit that to get the bill going if that's what it takes."

Overton confirmed, "It was simply and purely an effort to introduce the Biblical version of creation into the public school curricula...the definition of 'creation science' contained in 4(a) has as its unmentioned reference the first 11 chapters of the Book of Genesis." He determined, "Since creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion." (emphasis in original)

Creationism has explanatory power

The defendant asserted that creation-science was indeed science. Section 7(j) of the act stated, "Creation-science is an alternative scientific model of origins." Wendell Bird, who wrote several significant works that inspired authorship of this act, claimed, "Scientific creationism indeed is as scientific as evolution."

During his testimony, the defendant's attorney challenged Harold Morowitz, stating that the scientific community branded anything it did not believe in as being unscientific. Morowitz noted, "Of course, the community has rules by which it operates. This is not a random acceptance or rejection by the community. The community has rules dealing with natural law, testability, explanatory power, and a number of other rules like that which relates to what is accepted and what is not accepted in the scientific community. There was some implication the way you asked that question that this was a capricious sort of choice on the part of a community of scholars. [It] is not a capricious choice. It's a community of scholars who are very dedicated to a discipline by which information is evaluated."

The plaintiff maintained that creationism did not in fact meet the criteria of science. Ariel Roth, a witness for the defendant, was asked, "Is there any scientific evidence of who the creator is?" He answered, "Not as far as I know."

Gould explained, "Let me say that creation-science is to me a contradiction of terms. Because creation, in my understanding, refers to the suspension of natural law by some power to place creatures upon this earth." Regarding the appearance of design in homologous structures, Gould noted, "It's always possible for the creator and therefore notions about the creator such as that are untestable, since there is no conceivable falsifying claim." He referenced a statement by creationist Duane Gish, "[l]eading light of the movement," quoting, "We cannot discover by scientific investigations anything about the creative processes used by the Creator."

In his testimony, Morowitz was asked if he considered creationism a threat to his position in the scientific community, and he replied, "No. Because the idea is totally outside the scientific community."

In his findings, Overton articulated, "If the unifying idea of supernatural creation by God is removed from Section 4 [of the act], the remaining parts of the section explain nothing and are meaningless assertions." He mentioned that proponents of creationism "cannot properly describe the methodology as scientific, if they start with the conclusion and refuse to change it regardless of the evidence developed during the course of the investigation." He concluded, "A theory that is by its own terms dogmatic, absolutist, and never subject to revision is not a scientific theory."

Gould expressed his concern at the effects of teaching creation-science as science, stating, "We evolutionists believe that what you call creation-science is a contradiction in terms and is not science. We were alarmed at its spread in various secondary schools across the nation."

Creationism and evolution are the only two models

In her deposition, defendant's witness Margaret Helder was asked if she considered herself to be a creation scientist, to which she answered yes. She was then asked if she considered herself to be an evolution scientist, to which she answered, "No. You can't be both." She also remarked that "there are two logical alternatives. One is descent from a common ancestor and the other is separate creation. Those are the two logical alternatives. If you don't accept one, you accept the other." Helder's statements exemplify the creationist claim that evolution and creationism are the only models of origins, and they are mutually exclusive. This claim is implied by the wording of the act itself, which "requires instruction in both scientific models (of evolution-science and creation-science)," and these two models are the only ones considered therein.

Obviously there are other models of origins. For example, in the prepared statement that he presented for his testimony, Nalin Chandra Wickramasinghe, a witness for the defendant, proposed an extraterrestrial origin and evolution of life. He noted, "Life was derived from and continues to be driven by sources outside the Earth...every crucial new inheritable property that appears in the course of the evolution of species must have an external cosmic origin." Additionally, in his deposition, Wickramasinghe referred to "a creation not in the sense that we've been hearing from the trial. But a creation within the...framework of the universe, within the laws of physics and chemistry of the universe."

In fact, the suit's decision concluded, "The two model approach of the creationists is simply a contrived dualism which has not scientific factual basis or legitimate educational purpose...That there are a number of theories was acknowledged by the State's witnesses, Dr. Wickramasinghe and Dr. Geisler."

Problems with evolution are evidence for creation

When asked how it was that he came to testify, Wickramasinghe responded, "Because Mr. Clark invited me to do so, and to ask if I could point out the aspects of my joint work with Fred that might in some way relate to the need for creation, even in a limited sense, and the inadequacies of Darwinian evolution." (emphasis added) By first suggesting that evolution and creation are the only models, the defendant hoped to demonstrate that weaknesses in the theory of evolution provide support for "creation-science". Morrow noted, "Creation Science is based more upon identifying and maybe interrelating what looked like inconsistencies in evolutionary theory." Additionally, he defined "creation-science" as "an accumulation of asserted inconsistencies or insufficiencies in the evolutionary model."

Plaintiff's attorney David Klasfeld recognized the faulty premise of this argument. He asked Morrow, "If the only evidence[s] in support of Creation Science are the same evidences which also support panspermiogenesis, or any other Theory of Origin, other than evolution, how does the school child understand that those are evidences in support of Creation Science?" Morrow admitted, "The school child is going to experience a considerable amount of confusion on these topics."

Judge Overton asked Morrow "you have made numerous various opinions, but you have not given any reason for creation except the improbability of the evolutionary position? Can you [cite] anything in support of the creationist position?" Additionally, he asked defendant's witness Wayne Frair if he could provide positive evidence for "creation-science" rather than negative evidence for evolution, and defendant's attorney David L. Williams responded that negative evidence for evolution represented positive evidence for creationism due to the models' mutual exclusivity. In his decision, Overton noted, "The proof in support of creation science consisted almost entirely of efforts to discredit the theory of evolution."

Evolution is a religion

Section 7(f) of the act stated that teaching evolution brings preference to faiths including "a religious belief in evolution." Ariel Roth agreed that evolution is a religion under the definition of "nondeistic belief." Morrow agreed that creation-science is no less religious than evolution. Geisler stated, "Evolution in the minds of all credible evolutionists is a philosophy." Frair claimed that evolution can be a religion "if a person uses it as the guiding philosophy of his life."

On the other hand, Gould noted, "I don't think all unanswerable questions are by definition part of religion." When asked if he thought atheism could be a religion, he answered, "Why are you asking that?"

Evolution requires as much faith as creationism

See the main article on this topic: Evolution requires as much faith as creationism

The suit's decision mentioned that in Ellwanger's deposition, he had claimed that "neither evolution nor creation can qualify as a scientific theory." He further explained that "we're not making any scientific claims for creation, but we are challenging evolution's claim to be scientific." Defendant's witness Jim Townley stated, "I don't think that there is any more validity to teaching Evolution than to teaching Creation Science." Morrow asserted that "there's no scientific evidence proving either one." Frair stated that evolution "can be considered a science in the same sense that creation is" and that the choice between creation-science and evolution was an act of faith.

However, Gould clarified, "Science of course by definition doesn't deal in articles of faith."

Evolutionists interpret evidence on the basis of their preconceptions

Defendant's witness Harold Coffin explained that "the facts, that is, the basic raw material is used by both evolutionists and creationists, but the interpretation is different." Defendant's witness Robert V. Gentry admitted that other scientists look at the same data and conclude that the earth is ancient. Plaintiff's attorney Thomas Lahiff debated with defendant's witness Donald Ernest Chittick on the conclusion that deep time is an observation rather than an assumption of evolution. Morrow admitted, "Well, they look at the same evidence that the evolutionists do and draw different conclusions. Now, I find this a positive activity."

On the other hand, Gould noted that a person need not let religious preconceptions get in the way of reaching sound conclusions. When asked, "Do you think that a religious person can be a competent scientist?" he answered, "Of course. The empirical record proves it. There are thousands upon thousands of religious people who are competent scientists."

Evolution can not be falsified

Section 7(c) of the act claimed that evolution cannot be falsified. Morrow asserted, "Now, you can't show either of these things to be false." Roth affirmed, "If you are going to limit your definition of science to the testable and the predictable, then you would have to say evolution does not fit into science."

In his deposition with Gould, Williams quoted biologist Paul Ehrlich as stating that "our theory of evolution has become one which cannot be refuted by any possible observations. Every conceivable observation can be fitted into it. It is thus 'outside of empirical science' but not necessarily false." In fact, Ehrlich was not saying that evolution is irrefutable, but rather that specific hypotheses regarding historical events were.

Interpreting evidence is not the same as observation

The defendant attempted to demonstrate that, because it could not be observed, evolution was not scientific. The act itself, in Section 7(c), stated that "evolution cannot be experimentally observed." Frair asserted that evolution is "a historic event, and we cannot test an historic event using a scientific method." Helder claimed that topics about origins "are not open to test." Townley asserted that "science cannot do experimentation on what it cannot see." He further affirmed, "We cannot duplicate the process of making living material from inanimate material through random collision, through randomness." Morrow remarked, "I don't see any way that we can test or prove how that first cell got here. I think it is all speculation."

However, Gould ably reminded everyone, "Observability is not a criteri[on] of science. You can't observe the fall of Rome either, but it fell."

Evolution has not been proved

Section 7(c) of the act stated, "Evolution-science is not an unquestionable fact." Geisler explained, "Creationists contend both that the lower forms did not give rise. There is no genetic connection between the lower forms and the higher forms by way of production. And that divine intervention is the key to the future." Frair was asked, "Isn't there a body of scientific evidence that demonstrates that all organisms are genetically connected?" He answered, "No. There are some people who believe this."

However, when Wickramasinghe, witness for the defendant, was asked if he thought that evolution was a fact, he answered, "Evolution as depicted in the fossil record and in the general disposition of biochemistry of cross life, yes, certainly, yes." During the cross-examination to his testimony, Gould cited three classes of evidence for evolution.

Gould explained the distinction between the fact of evolution and the theory of evolution, stating, "Insofar as evolution is a fact, there are no known alternatives. It's just a fact of the world. We could be wrong, of course. We can always be wrong. Whether there are alternative theories [of mechanisms], of course there are, but they are all evolutionary theories." He explained that the word theory is defined differently by scientists and laypeople, stating, "Theories are structures of ideas that interpret and explain facts. I am aware that in the American vernacular the theory is used differently to mean imperfect fact. It is not what it means to a scientist." Gould explained that theories and facts are different, stating, "Theories are ideas that interpret and explain facts. They are just something else, they don't arise to the level."

During his cross-examination of Morowitz, defendant's attorney Callis Childs also expressed concern over the general confusion between terms, stating, "I think there has been a blurring in the distinction between a theory and a fact in this lawsuit, and that is the point I am attempting to make, your Honor." Judge Overton responded, "I don't know how it's blurred, but it doesn't seem to me like that answer blurred it."

In his decision, Overton concluded, "Evolution is the cornerstone of modern biology...Any student who is deprived of instruction as to the prevailing scientific thought on these topics will be denied a significant part of science education."

Many scientists find problems with evolution

Section 7(c) of the act stated that "evolution-science is not accepted by some scientists." Regarding anti-evolution sentiments, Morrow admitted, "I would say the fact that the criticism comes from people with respectable credentials makes it a positive contribution to science."

However, investigation reveals that a large number of the opponents of evolution are not experts in relevant fields. In the context of Fred Hoyle's assertion of the statistical improbability of the spontaneous generation of life, Klasfeld had occasion to mention to Morrow, "I may be wrong, but [isn't] Mr. Hoyle's area of expertise...astronomy?"

Klasfeld asked Wickramasinghe what graduate degrees he had in biology, to which he answered, "In biology?" and also admitted that he had no degrees in geology or paleontology. Additionally, Wickramasinghe had the following exchange with Klasfeld after the latter asked the former whether blue-green algae is a prokaryote and uses water in a vial of oxygen:

A. I think that there's probably evidence -- I don't know. I haven't got the facts in my head at the moment.

Q. Did you ever?

A. What's that?

Q. Did you ever have the facts in your head about this subject?

A. About what subject?

Despite forming the opinion that terraced lines were evidence of a recent flood, Chittick admitted that he did not know what sedimentary facies were. Despite forming the opinion that the earth is young based on isotope ratios, he admitted that he did not know of the existence of the field of organic geochemistry. As an example of a recently read article on the age of the earth, he referenced an ICR publication by Harold Slusher, a creationist with questionable credentials. When asked for a recent article agreeing with his position of a young Earth, he presented the creationist publication "Bible Science Newsletter," which he admitted was not peer reviewed.

Ferber asked Townley, "Did you do any kind of review of the scientific credentials of the authors of books that you read?"

Scientific findings are always changing

Helder was very critical of scientists' perceived inability to form a consensus as to the evolution of green algae. She claimed, "As there is no evidence for the alternative, as authorities in the green algae differ as to what the pattern of descent is, I can say there is no evidence for descent from a common ancestor. Therefore, it is as valid for me to reject the idea of a common ancestor as it is to accept it."

However, Gould explained, "It seems to me what's not revisable is the basic belief that a document, namely Genesis, must contain literal truth." He also stated, "The fact that science is always tentative does not mean that there is entirely subjective knowledge in the world. I think science does obtain answers. They can never be absolutely certain. But again I would be very surprised if the earth did turn out to be flat after all."

Science is naturalistic

Creationists fault science for its basis in naturalism. Helder noted that the evolutionary scientist would "assume that there is no phenomenon that cannot be explained by mechanistic processes" while "the Creation Scientist would question whether all aspects of origins can be explained by mechanistic processes." Nevertheless, she maintained that people who believe in supernatural explanations could still be regarded as scientists.

Frair noted, "I think there's an implication in the creation that there could be something that would extend beyond science." On the other hand, when asked if he knew of "any evidence of the suspension of natural laws or processes," he responded that "scientists operate on the basis of faith in these laws, and this is the whole basis of science."

In reference to the laws of the universe, Wickramasinghe explained, "Well, if it is possible to be outside, then I think it is not part of the inquiry that scientists are supposed to be engaged in, and it becomes metaphysical." Gould explained that life "either arose through natural law or through the suspension of it. Science deals with natural law."

Evolution's materialism or naturalism denies a role for God

Creationists fault science for its intention to make God unnecessary. Townley explained, "There is no need for an exterior God in evolution." However, when asked, "Did evolution, as taught in Public schools, deny the existence of God in any way?" he answered, "No, I don't think so."

In his testimony, Wickramasinghe explained, "The notion of a creator placed outside the Universe poses logical difficulties...My own philosophical preference is for an essentially eternal, boundless Universe, wherein a creator of life somehow emerges in a natural way."

Gould was asked, "Do you think that the theory of evolution is contrary to the religious convictions or moral values or philosophical beliefs of some people?" He answered, "I don't think they can be contrary to properly constituted morality and ethics, because that's a whole other realm, and evolution is about the facts of the world. I don't see how the world's facts can be contrary to ethical and moral belief."

Scientists are pressured not to challenge established dogma

Morrow admitted, "I think there's a general bias against teaching Creation Science." Regarding the exclusion of creation-science from textbooks, he stated, "I would have no doubt that there is a certain degree of conspiracy involved." During his testimony, Judge Overton asked Morrow, "Are you saying the scientific community is engaged in some sort of conspiracy?" Morrow replied that he "would not be surprised to find systematic censorship."

Overton reported in his decision that he could find no evidence of such censorship, noting that "no witness produced a [creation-]scientific article for which publication has been refused." He added, "It is, however, inconceivable that such a loose knit group of independent thinkers in all the varied fields of science could, or would, so effectively censor new scientific thought."

Evolution is the foundation of an immoral worldview

Section 7(d) of the act stated that evolution "is contrary to the religious convictions or moral values" of students and parents. Geisler noted, "I think that if we have no theistic groundwork for our ethics, that ultimately man is left spiritually, psychologically and socially adrift."

Wickramasinghe agreed that the rise of Nazism was likely connected with Darwinian evolution. Additionally, the case's decision reported, "Mr. Ellwanger is of the opinion that evolution is the forerunner of many social ills, including Nazism, racism and abortion."

On the other hand, when asked if the theory of evolution had any moral implications, plaintiff's witness Michael Ruse answered, "I really don't think so...I don't think your moral decisions and morality per se stem from science. It stems from your moral code."

Evolution is baseless without a theory of abiogenesis

Chittick noted, "Evolution is the process of origins, natural historical origins, of the universe to the present stage as we see it today." This definition demonstrates the creationist claim that evolution is dependent upon an explanation for the origin of life.

In fact, scientists generally consider theories of origins to be separate from those of the evolution of life. Gould explained, "Theories of origins is a bad term, because we don't really deal with origins in the study of evolution." Judge Overton concurred, noting in his decision that "the scientific community does not consider origins of life a part of evolutionary theory."

Many famous scientists were creationists

Section 7(j) of the act stated that "there are scientists who conclude that scientific data best support creation-science." In his testimony, Frair asserted that if Charles Darwin were alive today he would be a creationist. Helder pointed out, "Newton was also a believer in a supernatural creator."

Gould defined the "Newton's law" God as "a clockwinder who sets up the laws of the universe, then let it run." He also pointed out that "this act does not permit that version of creation."

Organisms come in discrete kinds

Creationists claim that evolution between distinct created "kinds" is impossible. Frair explained that "the kinds would be separated by lack of genetic continuity." He offered "the very fact that organisms could be grouped as separate from others" as evidence of these created kinds.

Helder admitted that the scientific basis for creation within special kinds is primarily negative inference from arguments against evolution. Wolfe asked her, "Can you tell me which of the 'originally created kinds of plants and animals' green algae are in?", and she did not know. She admitted that the created kinds of green algae could not be determined scientifically and that no evidence of this could ever be found, and she had not made any such studies. When presented with algae, she identified them by order and genus, but she declined to identify them by kinds.

Coffin defined kinds by observing, "If we look at the fossil record and compare it with living organisms and we see the same basic categories of plants and animals from the past to the present, we could get some feel as to what those basic created kinds were." However, he admitted, "Because it is a broad term and has no specific meaning to a taxonomist...it cannot be pinpointed to a definite meaning." When asked if he knew the word's origin, he answered, "I would expect it to be in a religious writing."

Gould noted, "I find that notion of kind to be so ambiguous that it's [i]ndefinable."

Range of variation is limited within kinds

When asked to define "kind", Helder replied, "Well, I will say that change within kinds would deal with change in complexity. There is change in detail, big or little, black or white, variations in color, but when it comes to change in the degree of complicatedness of an organism, I would say that has not occurred." Note that this definition is consistent with creationists' notion of "kind" as a barrier past which they deny evolution has taken place. Helder also explained, when asked about evolution from one kind to another, "There has never been any change in complexity."

When asked for the source of her belief that green algae were created within kinds, Helder responded, "There is no scientific evidence to the contrary." She also admitted, "I cannot imagine any discoverable evidence that would show the green algae to be descended from a common ancestor."

When asked to identify the limits of the "limited change model," Frair admitted, "This is something that hasn't been defined precisely." He admitted that "changes only within fixed limits of originally created kinds of plants and animals," from the definition of creation-science given in Section 4(a)(3) of the act, was consistent with what Genesis says.

Ruse too characterized Section 4(a)(3) as being "too vague."

Microevolution is distinct from macroevolution

Creationists use the terms microevolution and macroevolution to differentiate between evolution that they believe to have taken place and that which they refuse to acknowledge. To illustrate, Frair defined macroevolution as "the term that refers to evolution that would link all living things on one tree." When asked for the evidence against macroevolution, he identified, "The problem associated with establishing genetic continuity between diverse groups." Note that this is negative evidence.

Similarly, Geisler explained that "as I understand macroevolution, it is the belief that all living forms are the result of a process of development from previous animal life." He also offered, "Macroevolution is understood by modern Humanists as a faulty conclusion from the scientific evidence." Creationist acceptance of microevolution, but non-acceptance of macroevolution is what has enabled their creation of the concept of baraminology.

The misguided tendency to differentiate between macroevolution and microevolution stems from a failure to recognize that great change is merely the accumulation of numerous small changes. Gould was asked, "The peppered moths, is that an example of natural selection… [o]r is that an example of some sort of genetic change?" He responded that "all natural selection involves genetic change."

All hominid fossils are fully human or fully ape

When asked if he was aware that there were experts who viewed Australopithecus as essentially a human, Gould responded, "I am aware that there are other human beings who say that."

Archaeopteryx is fully bird

Lahiff debated Coffin regarding whether archaeopteryx was fully bird.

In his testimony, Gould cited the creationist claim that archaeopteryx was fully bird, and he identified it as an example of a transitional fossil.

Cambrian explosion contradicts evolutionary "tree" pattern

Coffin identified the sudden appearance of complex organisms in the Cambrian as evidence against evolution. In his testimony, however, Gould offered refutations against the argument of the lack of Pre-Cambrian ancestors. As explanations for the apparent "explosion," he cited fossils not being found, the advent of sexual reproduction, and the S-shaped pattern of species proliferation.

Transitional fossils are lacking

Coffin identified the absence of good connecting links between major groups as evidence against evolution. Frair admitted he did not know any intermediate forms.

Helder admitted there were no transitional forms between "kinds." She further admitted that no evidence would cause her to believe that prokaryotic and eukaryotic cells were in the same kind, stating, "I do not know of a transitional form that would cause me to change my mind." Additionally, she could not describe characteristics of such a transitional form. She admitted that it was scientifically unreasonable to regard as transitional a form that was primitive in certain respects and advanced in others.

Geisler stated that the fossil record is explained by creation, claiming that "all the basic phyla begin in the same time period. And when new life forms begin, they begin with no known ancestral remnants in the fossil record. There are great gaps in the fossil record between the kinds, not just small gaps...It's not quite missing links, it's missing chains. That's a fact." When asked for his evidence that there have been no "missing links," he responded, "Evolutionists themselves admit that the fossil record shows...and they have not discovered, after 100 years the so-called missing links."

However, Gould explained that "the notion of transitional form doesn't mean that you have to have every single stage in a final-graduated sequence. Evolution doesn't work that way anyway." In his testimony, he pointed out that the creationist criticism of gaps in the fossil record was refuted by noting the imperfection and unexpected pattern of fossils. He cited the evolution of mammal-like reptiles to mammals and that of humans as examples of good transitional sequences that were nonetheless rejected by creationists.

The Bible says it; I believe it; that settles it

Coffin admitted that his bias toward creation-science came from his belief that truth can be arrived at by a study of scripture. Geisler admitted that philosophical presuppositions are the basis for differences in one's views regarding biblical inerrancy. Frair admitted, "Well, if it weren't for the fact that I believed the Bible, I probably wouldn't concern myself as much about this issue [of the best model view to hold]." Townley was asked, "Can you imagine any scientific evidence that would cause you to give up your belief in creation as described in Genesis?" He simply answered, "No."

In his ruling, Overton concluded that "they take the literal wording of the Book of Genesis and attempt to find scientific support for it."

Prophecies prove the accuracy of the bible

Chittick admitted to believing that the prophecy of Daniel unfolded just as the Bible had predicted. As an example of a fulfilled prophecy, Roth mentioned, "In the Old Testament it predicted that Christ would be crucified."

Gentry too admitted to believing that Nebuchadnezzar's dream was a fulfilled prophecy. He also admitted that due to studying prophecies, "it occurred to me that the scriptures had a great deal more credibility than I had granted them in...my earliest years." He also noted, "Having come to that position [of the accuracy of the information contained in the Book of Genesis], I decided...to undertake a research project and attempt to determine, if possible, whether what I had...accepted was indeed based on reality or evidence."

When asked why it was that she believed the Bible predicted future events, Helder stated, "I would say I agree because it is the opinion of most theologians that that is the case."

Seven-day week is evidence of literalness of Genesis

Although not on Talk Origins' list, this curious argument was presented in the depositions of defendant's witnesses. In reference to the week being observed as Monday through Sunday, Coffin claimed, "There is no good explanation for the week, outside of creation. But to my knowledge, that's the only, shall we say, scientific evidence in support of creation week." Gentry admitted his Seventh-Day Adventist beliefs and the Fourth Commandment "moral issue," or "memorial of the initial six days of creation," afforded him his first doubts about evolution.

There was no death or decay before the Fall

Wolfe ascertained that Helder believed fungi were created during the creation week and also in the nonexistence of death and decay prior to the fall. He then asked, "Is it true that fungi require death or decay of some fashion in order to exist?" He also asked, "Doctor, is it your view that parasites were specially created during the six-day creation week?"

Vestigial organs are just evidence of decay, not evolution

Klasfeld asked Coffin, "Why did God make us inefficient?"

Gould explained that "when you see an organ that is perfectly designed, that doesn't teach you a whole lot about how it arose. When you see a structure that is very imperfect, as almost all organic structures are, and when you can trace that imperfection to a historical constraint based on a previous evolutionary stage, then you have evidence for evolution."

The earth is 6,000-10,000 years old

Creationists maintain that scientists are unsure of the age of the earth. Geisler claimed, "If we could decide how old the earth is, we could narrow down the views [on origin of the earth] considerably. But that's an open scientific question...It’s debatable scientifically, so it must be left open."

On the other hand, Morrow, a witness for the defendant, admitted, "I think it would be very difficult for someone to be able to establish to the satisfaction of a group of scholars that the earth was 10,000 years old." However, Klasfeld reminded him, "But we're not talking about a group of scholars. We're talking about a group of eleventh graders." Wickramasinghe, a witness for the defendant, stated, "I think that [a young earth scientist] is misled and is not looking at the facts in a systematic, reasonable way."

Coal and oil can form quickly

Chittick presented a model for the rapid formation of coal, which allowed for a young earth. He denied that the activity of fungi or bacteria was important in the formation of coal, citing "challenges" via letters to the editor. Lahiff then asked, "Does a challenge constitute a dismissal?" Chittick admitted, "I was not there when coal was formed. All I can do at this present day is look at coal, [and] make a model to make some assumptions by which it may have been formed."

Ferber remarked to Townley, "It is my understanding that we have things such as coal and oil through a very long history of changes in the earth, a history significantly longer than ten thousand years."

Radiometric dating falsely assumes that rates are constant

Gentry admitted that "one cannot accept the interpretation of isotope ratios over that period of time as indicating a several billion year age of the Earth until the basic premise itself (the constancy of the decay rate) has been validated." In his testimony, he reported that his research indicated polonium halos in granite are evidence of rapid cooling, which could also indicate a young earth.

Regarding unexpected isotope ratios, Lahiff asked Chittick, "But do individual examples of contamination necessarily disprove the validity of the process?"

The Flood shaped the earth's surface in other ways

In his testimony, Gentry cited polonium halos in coalified wood as evidence of its burial during a deluge. Coffin debated with Klasfeld that the appearance of spirorbis in coal indicated a flood. Chittick presented just-so stories for causes of the Genesis flood and admitted that it was the inspiration for his investigation of terrace line formations.

Regarding his acceptance of the historicity of the flood, Townley admitted, "I do believe it because of my obvious Christian beliefs."

Wickramasinghe, a witness for the defendant, was asked, "Are you aware of any scientific evidence for the fact that the earth's geology could be explained by one single catastrophic event?" and he answered, "No." When he was asked, "Would you think any rational scientist could think that was true?" he answered, "Not on the evidence that I've been able to look at, no."

Gould mentioned, "And the evidence for a recent worldwide flood is nonexistent, by the way." He observed that "if all forms [of] life simultaneously [were] mixed up in the flood, I don't know why they would then sort out in such an ordered sequence of increasing size of brain and body from the australopithecines to Homo habilis to Homo erectus to Homo sapiens." In his testimony, he noted that the flood was not scientific because it depended on supernatural intervention and was falsified by the ordering of the geological record and the inconsistency of extinction events in the geologic column with flood geology.

Uniformitarian assumption is untenable

Gentry presented the claim that the Judeo-Christian ethic contrasted with uniformitarianism.

Contrarily, plaintiff's witness G. Brent Dalrymple explained that "you can have catastrophism and uniformitarianism at exactly the same time. They do not preclude each other at all." Gould agreed, noting, "Geologists have been quite comfortable with the explanations that some events have been the accumulation of small changes, and others as the result of, at least, local catastrophes." He explained "The term 'uniformitarianism' has two very distinct meanings that are utterly separate," and which creationists conflate.

Most mutations are harmful

Creationists claim that since most mutations are harmful, they cannot be used as raw material for evolution. Frair concurred with this assessment, asserting, "If we think about [the] subject of mutations, virtually all the mutations that we know about today are harmful." However, Frair also noted, "The beneficial mutations that we talk about are valid to certain organisms in certain environmental conditions," which effectively contradicted his previous statement and is exactly what scientists claim.

The odds of life forming are incredibly small

Creationists delight at presenting variations on the statistical argument against the spontaneous generation of life. Regarding spontaneous generation of the first cell, Morrow asserted that "intuitively, I strongly feel that there's not enough time for that to occur." He agreed that two billion years was in fact not enough time, and Klasfeld then asked, "How much time would have been enough time?"

Wickramasinghe mentioned the unlikelihood of 2000 enzymes coming together spontaneously. In his testimony, he noted that "the probability of an evolutionary origin of life was essentially zero-no greater than the probability that a tornado sweeping through a junkyard would assemble a Boeing 747." However, he also admitted that "if one considers kinetics of association then there are...facts that could be regarded as helping out of the dilemma," which seems to contradict the statistical argument.

Even the simplest life is incredibly complex

Creationists claim that the complexity of life makes its spontaneous generation unlikely. Morrow explained, "Let's say you have a polypeptide, it's fifty amino acids long. That's a reasonable length for an enzyme. If you have 20 different amino acids, I would presume you would put these amino acids into a specific order. I guess you would have something like twenty to the fifty power combinations...Now, if we assume, for example, that molecules -- all of these molecules are viable and they collide, let's say, one per second, I would tend to doubt that you would get that enzyme in two billion years." Klasfeld responded, "Tend to doubt is -- at least to my mind -- an unscientific choice of words."

The second law of thermodynamics prohibits evolution

Creationists claim that evolution implies an increase in organization and therefore violates the second law of thermodynamics. Geisler asserted that the second law of thermodynamics implied God and creation.

Klasfeld challenged Morrow, asking, "Plants grow, don't they?" Morrow answered, "What's that got to do with it?" Klasfeld explained, "Well, it's increasingly complex from the seed to the plant. Doesn't that violate the Second Law." Morrow did admit, "You can pretty much get anything out of the Second Law, depending upon how you define your terms."

In his testimony, Morowitz explained that scientists do not see a conflict between evolution and the second law of thermodynamics. He noted that "the problem was essentially solved in 1886 by Bolzmann, B-o-l-z-m-a-n-n. And it has been a subtle problem, and a number of people have simply not understood the solution and therefore there has been some residual argument. I would say by 1981 that has been almost entirely cleared up, and I know of no one other than the creation scientists who have any qualms about there being any conflict between life and the laws of thermodynamics."

How could information, such as in DNA, assemble itself?

Creationists claim that since they do not understand how "information" came to be present in DNA by natural means, that therefore this did not occur. Wickramasinghe noted, "I think the information content applies. It's so, incredibly, vast that one has to entertain the possibility of a creation." He further noted, in his testimony, that he chose to "disavow the Big Bang theory and the idea of biological evolution via mutations, both of which involve degradation of information."

Geisler asserted, "It always takes intelligent intervention to make an alphabet into a dictionary." He admitted that this position was based on Michael Polanyi's research. Polanyi's conclusions do not represent the scientific consensus.

Pure chance cannot create new structures

Creationists claim that complex structures could not have arisen by chance. In fact, Gould was asked, "Is one of the essential characteristics of evolution that it has occurred more or less in a random and chance way?" However, he responded, "Nope...In fact, the direction of change is imposed by natural selection, which is a deterministic force that adapts organisms to prevailing local environments."

Punctuated equilibrium was ad hoc to justify gaps

Creationists claim that punctuated equilibrium was proposed to explain inconsistencies between evolutionary theory and observations of the fossil record.

However, in his testimony, Gould explained, "So it's not true to say that punctuated equilibrium is just an argument born of despair, because you don't see transitional forms. When the geological record is unusually good, you do, indeed, see them." Gould cited the creationist misrepresentation of punctuated equilibrium as involving sudden change in a species.

Gould enumerated the tenets of punctuated equilibrium, stating, "First, that evolutionary change occurs during events of speciation. Secondly, that events of speciation, though slow on the scale of our lives, are geologically instantaneous, tens of thousands of years. Thirdly, that most species during the course of their history tend to change [very] little."

Recapitulation theory is not supported

Creationists claim that embryological stages are still used as evidence for evolution despite the fact that embryological stages of a developing organism do not follow the organism's evolutionary history.

However, Gould explained that "the gills represent not the fish ancestor, from which we descended, not the adult fish ancestor, but rather a common stage in the embryology of all vertebrates which mammals have preserved, and therefore it indicates conservative heredity."

Fossils are dated from strata; strata are dated from fossils

Creationists claim that when scientists use the fossil record to prove evolution, they are employing circular reasoning, since the fossil record was constructed with the assumption of evolutionary progression.

However, in his testimony, Gould explained fossil dating techniques and that there is no assumption of evolution in dating the fossil record. He was asked, "So is the creation science claim that the assumptions of evolutionary theory are essential to the relative dating of the stratigraphic record correct?" He answered "No. It's a red herring. The stratigraphic record is established by observation and superposition." He was asked, "When were those relative dates first established?" He answered, "In broad outline, the geological column was fully established before Darwin published The Origin of Species."

Quote mining

In his testimony, Gould confessed, "I think [creation scientists] proceed by misquotation, by selective quotation, and by invoking supernatural intervention to produce the basic kinds of life, all of which are not only unscientific, but represent skill and rhetoric rather than science." He additionally cited creationists John Whitcomb and Henry M. Morris' quoting of geologists C. P. Ross and Richard Rezak regarding fossil dating of the Lewis Overthrust, and he added, "But that's certainly a good example of selective misquotation."

Williams had Gould read a quote of zoologist Gerald Allan Kerkut from 1960 on the subject of "scientific heresies," which Williams believed validated the teaching of creation-science. Following are Williams and Gould's interpretations of that quote:

Q: [Williams] Isn't what [Kerkut] is saying there, as you understand it, that if you have these scientific heresies to be studied, even though they may be terribly minority opinions, that through this clash of ideas, opposing ideas, that the students can better understand the [predominant] scientific thought, and when they do work themselves, they can come to it with a fresh appraisal and a fresh outlook?

A: [Gould] Yes, and I agree with that. Remember the scientific heresy he is teaching in this book is the notion that life may have arisen from non-life on earth more than once. It's a scientific heresy. I repeat, not one that is outside science.

Frair additionally quoted the passage from Kerkut in his testimony.

Williams then attempted to misquote Gould to Gould. While discussing the origin of life, Williams quoted from A View of Life:

That biologists have been proceeding in this manner for more than a century, making inferences about organic programs by peering through a glass darkly at their translated products. More work with the same methods may never yield satisfactory answers. After all, a century of concentrated effort has failed to find them.

Gould then explained, "What I said, the question here is not the origin of life, but the interrelationships of the various phyla of animals, of organisms in general...I argue in the chapter that we have been unable to resolve them because the evidence of morphology is inadequate; there just isn't enough of it. And then I go on to say, with the possibility of doing sequencing with DNA, we may be able to get firm answers."

Williams then continued to misquote Gould to himself:

Q: The first sentence of the summary states, quote, Life arose naturally from chemical constituents of the earth's original atmosphere and ocean, close quote.

And you earlier stated that after a century of work on the subject you were discussing in this chapter, there are no satisfactory answers.

A: No.

Q: But yet you have given an answer, have you not?

A: No. The century of work is on a different question, the interrelationships of the phyla of animals, how are mollusks related to arthropods and et cetera.

Williams then quoted Gould in an attempt to seek validation for the dual model approach of creation-science and evolution. Following are the quote and Gould's explanation of it:

Q: And do you not state, 572 of that text, where you introduce part E, quote, Biologists have described more than a million species of living organisms, and at least this many still await discovery. Why are there so many kinds of organisms, and why are they so varied yet evidently organized into groups of similar forms. These ancient questions have two potential resolutions. Either all species were created as we find them and the relationships among them reflect the creator's opinion about how the world should have been organized, or all species have descended naturally, from a common ancestor, and true relationships among them reflect patterns of genealogical proximity of an evolutionary tree, close quote.

A: Yes. Despite the historical introduction, which is a two page introduction to the five parts of the textbook, are historical commentaries, if you read the other four, you'll see that is so. And what I'm stating is merely the fact of what in history [have] been the two explanations. (emphasis added)

Williams even managed to misquote statements from Gould's deposition. Note this passage from Gould's testimony:

Q: And in talking about the evolution that we have observed, as you termed it, evolution in action, in the last one hundred years, how much evolution have we observed in the last one hundred years?

A: About as much as one could reasonably hope to observe in such a short space of time.

Q: And in your deposition did you not tell me that was literally nothing?

A: I certainly didn't. Literally nothing? I don't quite understand the context...

Q: On page 106 of your deposition I asked you this question: "How much do you think we've been able to observe about evolution?" And you gave this answer, "As much as we can really be expected to in the time scale of a hundred years, which is nothing, since the publication of The Origin of the Species."

A: I'm sorry. I mean, which is very little time. That's clearly an incorrect statement. Indeed, what you're quoting is, of course, inconsistent with the first statement. It's unlikely that that's what I really meant. I said, as much as we can expect to observe. If I said, "which is nothing", I meant that a hundred years is so little time it doesn't amount to very much.

In his deposition, Williams asked Gould, "Do you recall writing an article, since I don't have a copy of it, where you said that [Ernst] Mayr's characterization of the synthetic theory of evolution, if accurate, then as a general proposition it is effectively dead despite its persistence as textbook orthodoxy?" Gould explained, "Effectively dead as a general theory. That's what the quote says. Still very applicable to the understanding of small scale changes within populations."

Gould made reference to a quote of his that is often taken out of context. The quote says that "paleontologists and evolution biologists are famous for their facility in devising plausible stories but they often forget that plausible stories need not be true." He explained, "That statement comes from a paper in which I was with several other authors referring only to stories that paleontologists tell that attempt to interpret in adaptive terms the facts of an evolutionary tree. It is cited in that context to make it appear that I believe the existence of the tree itself to be tentative."

Williams attempted to quote Gould out of context from an article regarding another trial, reporting, "You further state in your article that 'As a sidelight to a correct perception (and cowardly decision) about the politics involved, I was originally scheduled to testify for the State in this trial but was dropped as a witness by the Attorney General because he felt that my leftist political' - I see. The light has struck. You're talking about the California trial?" Gould then responded, "Yes. No, you never called me."

Gould further explained that Darwin's use of "creator" was consistent with Isaac Newton's "clockwinder god." He also explained, "When [Albert] Einstein says God doesn't play dice with the universe, a famous metaphor, what he says is that he believes that deterministic laws were discovered to render what we now consider chance."

In an effort to demonstrate that other scientists disagreed with Gould's conclusions, Williams indicated, "[G. Ledyard] Stebbins has also said, to paraphrase, that while such sudden [erratic] changes might grow mutations or — macromutations are common, they almost never spread through further generations to become established. Are you familiar with that?" Gould explained, "I agree with that. That's not the theory of punctuating equilibrium. That's talking about the theory of hopeful monsters that is not a theory that I have pushed...But I do emphasize that Ledyard and I have no disagreements with whether evolution occurs."

In his cross-examination of Morowitz, Childs read him a quote of physical chemist Ilya Progogine from an article titled "Thermodynamics of Evolution" (1972), whereupon the following verbal exchange took place:

"Q: [Childs] Would not that appear to be the application of the calculations from equilibrium state thermodynamics to the evolution of life on the surface of the earth?

A: [Morowitz] Well, much of Prigogine's work has dealt with non-equilibrium dynamics. I think if you read on following that quotation, he gets into a little more detail about how the problem is solved. If you go just following that quotation, the next sentence or two.

MR. NOVIK: Perhaps it would help if the witness had a copy of the offer.

THE COURT: It doesn't sound like he needs one to me."

Childs then asked if Morowitz recalled a quote from an article that he wrote himself in which he stated, "The view that life's origin cannot be predicted from physics because of the dominance of chance factors was elaborated by Jack Monod...in his book Chance and Necessity." Morowitz answered, "Yes. The article then goes on to criticize what's wrong with those points of view and why they were incorrect...Monod did not deal with thermodynamics at all in his work. Monod dealt with mutation rates, not with thermodynamics."

Creationists' reaction

In a summary of the testimony, Duane Gish observed that plaintiff's witness Dorothy Nelkin "admitted that evolution is based on an a priori assumption of no creator." In fact, Nelkin's initial statement was, "It is based on the presupposition that there are natural processes at work. It is totally irrelevant as to whether -Nobody would ever ask that question."

Gish also noted that plaintiff's witness Michael Ruse "accused creationists of quoting out of context but then later quoted a portion of Gish's book Evolution: The Fossils Say No flagrantly out of context." In fact, Ruse was asked, "Are there any examples in the creation science literature that you've read that creation science does not rely on natural law?" Ruse answered:

Okay. I'm turning now to page 40 of Evolution: The Fossils Say No by Doctor Duane Gish. And this was published in 1978, or at least this edition. I think it came out earlier. And I quote: "By creation, we mean the bringing into being by a supernatural Creator -- That's a capital C, by the way -- of the basic kinds of plants and animals by the process of sudden, or fiat, creation.

"We do not know how the Creator created, what processes He used, for," and this is all now in italics, "He used processes which are not now operating anywhere in the natural universe," end italics. "This is why we refer to creation as special creation. We cannot discover by scientific investigations anything about the creative processes used by the Creator."

I don't think you can get much more blatant than that.

Although this is certainly quoting, it is unclear that it is actually an example of quoting out of context.

Gish further claimed plaintiff's witness William Mayer had stated that "presenting an alternative interpretation of origins would confuse students and so should be avoided." However, according to defendant's witness Norman Geisler, what Mayer had stated was that teaching creation-science would cause "more problems than it would solve by mixing theology and science in a way that 'damages both and is helpful to neither.'" Geisler also reported that Mayer predicted the effect on students would be to "confuse them by making them think there are two alternatives which are not really alternatives at all, because one is science and the other is religion."

A statement by attorneys Wendell R. Bird and John W. Whitehead indicated the court's decision was "constitutionally erroneous and factually inaccurate." In this statement, the authors reaffirmed that creation-science is not biblically based and is "as explanatory, testable, tentative, and falsifiable as evolution-science." Additionally, they restated the arguments that evolution and creation-science are the only two models and that teaching creation-science does not violate separation of church and state and in fact promotes academic freedom.

In a summary of the testimony, defendant's witness Wayne Frair objected to the fact of the plaintiff's witnesses repeatedly identifying creation-science as religion despite the Arkansas law clearly defining it as science. Frair noted that "ACLU lawyer" Anthony Siano mentioned defendant's witness Norman Geisler's "comments dealing with spaceships". In fact, Siano was employed by Skadden, Arps, Slate, Meagher & Flom, and the referenced comments by Geisler were his admissions that he believed in UFOs.

Following the publication of the decision, Frair characterized the trial as a "travesty of justice" and accused Judge Overton of having been "biased against the defense." Frair referenced the "accurate newspaper coverage" of the trial by "reporter Cal Beisner." In fact, E. Calvin Beisner, Ph.D., is an author advocating a biblical worldview and is founder and spokesperson for the Cornwall Alliance for the Stewardship of Creation, and his coverage of the trial was reprinted in Geisler's The Creator in the Courtroom: Scopes II. Frair complained that his attempts to access his trial transcripts were being blocked when in fact the whereabouts of all of the defendant's witnesses' transcripts are unknown to anyone.

Gish further lamented, "Secular humanism will be our official state-sanctioned religion, if Judge Overton's decision is allowed to stand."

See also

• Creationism in public education
• Edwards v. Aguillard
• Kitzmiller v. Dover Area School District
• Intelligent design

External links

• Act 590 of 1981 Mclean v. Arkansas Documentation Project. July 31, 2005.
• Participants
• Transcripts of Testimony
• Defendants' Transcript
• Depositions
• McLean v. Arkansas Decision
• Papers created by plaintiffs' attorneys during the Arkansas Civil Liberties Union's successful challenge of that state's creation science law (Act 501 of 1981)

Sources

• Edwords, Frederick (1982). "Victory in Arkansas: The Trial, Decision, and Aftermath." National Center for Science Education. 2011.
• Lancaster, Guy (Oct. 15, 2010). "McLean v. Arkansas Board of Education." The Encyclopedia of Arkansas History & Culture. 2011.
• Flank, Lenny (April 4, 2006). "Creationism/ID: A Short Legal History." Talk Reason.
• Bird, Wendell R. (April 1, 1979). "Evolution in Public Schools and Creation in Student's Home: What Creationist Can Do (Part II)." Institute for Creation Research.