Aguillard v. Edwards, 85-3030

Citation765 F.2d 1251
Decision Date08 July 1985
Docket NumberNo. 85-3030,85-3030
Parties, 26 Ed. Law Rep. 29 Don AGUILLARD, et al., Plaintiffs-Appellees, v. Edwin W. EDWARDS, et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William J. Guste, Jr., Atty. Gen., Patricia Nalley Bower, Asst. Atty. Gen., Lisa F. Keegan, Staff Atty., New Orleans, La., Wendell R. Bird, Sp. Asst. Atty. Gen., Atlanta, Ga., and A. Morgan Brian, Jr., New Orleans, La., for defendants-appellants.

Samuel I. Rosenberg, New Orleans, La., for Orleans Parish.

John DiGiulio, Baton Rouge, La., for La. State Bd.

Roy K. Burns, Covington, La., for St. Tammany.

Paul, Weiss, Rifkind, Wharton & Garrison, Allan Blumstein, James McLoughlin, Alan Pfeffer and Jack D. Novick, New York City; Andrew M. Weltchek and Ronald Steven M. Freeman, New York City, for amicus Anti-Defamation League.

L. Wilson, New Orleans, La., for plaintiffs-appellees.

Marc D. Storn, New York City, for amicus American Jewish Congress.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, POLITZ and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

We consider today a constitutional challenge to the Louisiana law entitled "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction" (the Act). The statute in essence requires the teaching of creation-science in Louisiana public schools whenever evolution is taught. The district court struck down the law as unconstitutional, holding that there was no legitimate secular purpose for the Act and that the Act would have the effect of promoting religion. We affirm the district court's judgment. In truth, notwithstanding the supposed complexities of religion-versus-state issues and the lively debates they generate, this particular case is a simple one, subject to a simple disposal: the Act violates the establishment clause of the first amendment because the purpose of the statute is to promote a religious belief.

I

We approach our decision in this appeal by recognizing that, irrespective of whether it is fully supported by scientific evidence, the theory of creation is a religious belief. Moreover, this case comes to us against a historical background that cannot be denied or ignored. Since the two aged warriors, Clarence Darrow and William Jennings Bryan, put Dayton, Tennessee, on the map of religious history in the celebrated Scopes trial in 1927 1 courts have occasionally been involved in the controversy over public school instruction concerning the origin of man. With the igniting of fundamentalist fires in the early part of this century, "anti-evolution" sentiment, such as that in Scopes, emerged as a significant force in our society. As evidenced by this appeal, the place of evolution and the theory of creation in the public schools continues to be the subject of legislative action and a source of critical debate. The subject of this appeal, La.Rev.Stat.Ann. Secs. 17:286.1 to .7, was enacted in 1981 when the Louisiana legislature added a provision to Louisiana's general school law applicable to all public secondary and elementary schools. 2 The statute requires the public schools to give balanced treatment to creation-science and to evolution-science. Creation-science and evolution-science are similarly defined in the statute as "the scientific evidences for creation (or evolution) and the inferences from those scientific evidences." Under the Act no school is required to give any instruction in the subject of the origin of mankind, but if a school chooses to teach either evolution-science or creation-science, it must teach both, and it must give balanced treatment to each theory. In addition, the statute prohibits discrimination against any teacher "who chooses to be a creation-scientist or to teach scientific data which points to creationism." 3

The plaintiffs, a group of Louisiana educators, religious leaders and parents of children in the Louisiana public schools, challenged the constitutionality of the Act in district court, seeking an injunction and a declaration that the Act violated the Louisiana Constitution and the first amendment of the United States Constitution. The plaintiffs were joined by the Louisiana Board of Elementary and Secondary Education and the Orleans Parish School The action was initially stayed pending the resolution of a separate action brought by the Act's sponsor and others for a judgment declaring the Act constitutional and an injunction to enforce the Act. That lawsuit, however, was dismissed on jurisdictional grounds. Keith v. Louisiana Department of Education, 553 F.Supp. 295 (M.D.La.1982). Following the Keith decision, the district court lifted its stay and held that the Act violated the Louisiana constitution. 5 On appeal, we certified the state constitutional question to the Louisiana Supreme Court which found no violation of the constitution. Aguillard v. Treen, 440 So.2d 704 (La.1983). We then remanded to the district court with instructions to address the federal constitutional questions. Aguillard v. Treen, 720 F.2d 676 (5th Cir.1983). The plaintiffs moved for summary judgment in district court, contending that the statute violated the establishment clause of the first amendment as a matter of law. The contentions of the parties before the district court were essentially the same as those advanced on appeal. The plaintiffs argue that the Act is simply another effort by fundamentalist Christians to attack the theory of evolution and to incorporate in the public school curricula the Biblical theory of creation described in the Book of Genesis. The state contends that the purpose and effect of the Act is to promote academic freedom and thus is a legislative enactment precisely tailored to serve a legitimate secular interest.

                Board. 4   The defendants-appellants are the Governor, Attorney General and State Superintendent of Education of Louisiana, in their official capacities, the State Department of Education and the St. Tammany Parish School Board
                

The district court granted the plaintiff's summary judgment motion declaring the Act unconstitutional and enjoining its implementation. The district court reasoned that the doctrine of creation-science necessarily entailed teaching the existence of a divine creator and the concept of a creator was an inherently religious tenet. The court thus held that the purpose of the Act was to promote religion and the implementation of the Act would have the effect of establishing religion. The state appeals that judgment.

II

The sole issue for our resolution is whether the Balanced Treatment Act violates the first amendment of the United States Constitution. Although many affidavits have been filed by the state concerning the Act's purpose and effect, it is not necessary to detail the factual record. Our disposition requires only that we consider one threshold question: whether the Act has a secular legislative purpose.

III
A.

We take this opportunity to note initially that, as a general proposition, states have the right to prescribe the academic curricula of their public school systems. We therefore exercise great care and restraint when called upon to intervene in the operation of public schools. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). Courts, however, have not failed to protect against violations of the first amendment, which forbids all laws "respecting an establishment of religion." See Epperson, 393 U.S. at 104, 89 S.Ct. at 270; School District of Abington v. Schempp, 374 U.S. 203, 215, 83 S.Ct. 1560, 1567, 10 L.Ed.2d 844 (1963). 6

                This bar includes, of course, laws respecting a particular religious belief.  Hence, the state's right to prescribe its public school curriculum is limited to the extent that it may not compel or prohibit the teaching of a theory or doctrine for religious reasons.   Epperson, 393 U.S. at 107, 89 S.Ct. at 272.  The vigilant protection of the First Amendment is nowhere more vital than in American public education.   Id. at 104, 89 S.Ct. at 270
                

Although the establishment clause prohibits the enactment of laws respecting an establishment of religion, it is equally certain that total separation of church and state is not possible in an absolute sense, and "[s]ome relationship between government and religious organizations is inevitable." Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 1358, 79 L.Ed.2d 604 (1984) (quoting Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971)). Time and again the Supreme Court has recognized that religion is closely identified with our history and government. See Schempp, 374 U.S. at 212, 83 S.Ct. at 1566. 7 Indeed, the Court has observed that "nearly everything in our culture worth transmitting, everything that gives meaning to life, is saturated with religious influences...." McCollum v. Board of Education, 333 U.S. 203, 235-36, 68 S.Ct. 461, 477, 92 L.Ed. 649 (1948). Thus, the establishment clause clearly does not require the public sector to be insulated from all that may have religious origin or significance. Stone v. Graham, 449 U.S. 39, 45, 101 S.Ct. 192, 196, 66 L.Ed.2d 199 (1980) (Rehnquist, J., dissenting).

Acknowledging the problems inherent in this sensitive area, we must set forth a framework for determining whether the Act is unconstitutional. This inquiry calls for line-drawing but no fixed per se rule can be expressed or applied in any particular case. Lynch, 104 S.Ct. at 1361. Although the Supreme Court has expressed unwillingness to be confined to any single test or criterion, id. at 1362, three principal criteria, nevertheless, have emerged to determine whether a state legislative enactment comports with the establishment clause: (1) whether the statute has a secular legislative purpose; (2) whether the principal or primary effect of the statute advances or inhibits religion; and (3) whether the statute...

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2 cases
  • Edwards v. Aguillard
    • United States
    • U.S. Supreme Court
    • June 19, 1987
    ...the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. Pp. 594-596. 765 F.2d 1251 (CA 5 1985), BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in all but Part II......
  • Aguillard v. Edwards, 85-3030
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 12, 1985

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