Aguillard v. Edwards, 85-3030
| Decision Date | 12 December 1985 |
| Docket Number | No. 85-3030,85-3030 |
| Citation | 778 F.2d 225 |
| Parties | 28 Ed. Law Rep. 1257 Don AGUILLARD, et al., Plaintiffs-Appellees, v. Edwin W. EDWARDS, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kendall L. Vick, Chief Counsel to Atty. Gen., Patricia Nalley Bower, Asst. Atty. Gen., Lisa Keegan, New Orleans, La., Wendell R. Bird, Sp. Asst. Atty. Gen., Atlanta, Ga., A. Morgan Brian, Jr., New Orleans, La., for defendants-appellants.
Samuel I. Rosenberg, New Orleans, La., for Orleans Parish.
John DiGiulio, Baton Rouge, La., Thomas T. Anderson, Sp. Asst. Atty. Gen., Indio, Cal., for La. St. Bd.
Roy K. Burns, Covington, La., for St. Tammany.
Paul, Weiss, Rifkind, Wharton & Garrison, Allan Blumstein, James McLoughlin, Alan Pfeffer, Jack D. Novick, New York City, Andrew M. Weltchek, Ronald L. Wilson, New Orleans, La., for plaintiffs-appellees.
Steven M. Freeman, New York City, for amicus-Anti-Defamation League.
Marc D. Storn, New York City, for amicus American Jewish Congress.
Appeal from the United States District Court for the Eastern District of Louisiana; Adrian G. Duplantier, Judge.
Before BROWN, POLITZ and E. GRADY JOLLY, Circuit Judges.
ON SUGGESTION FOR REHEARING EN BANC
(Opinion July 8, 1985, 5th Cir.1985, 765 F.2d 1251)
Treating the suggestion for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The judges in regular active service of this Court having been polled at the request of one of said judges and a majority of said judges not having voted in favor of it (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.
Before CLARK, Chief Judge, and GEE, ALVIN B. RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, JERRE S. WILLIAMS, GARWOOD, E. GRADY JOLLY, PATRICK E. HIGGINBOTHAM, W. EUGENE DAVIS, ROBERT MADDEN HILL, and EDITH HOLLAN JONES, Circuit Judges.
Today our full court approves, by declining review en banc, a panel opinion striking down a Louisiana statute as one "respecting an establishment of religion." The panel reasons that by requiring public school teachers to present a balanced view of the current evidence regarding the origins of life and matter (if any view is taught) rather than that favoring one view only and by forbidding them to misrepresent as established fact views on the subject which today remain theories only, the statute promotes religious belief and violates the academic freedom of instructors to teach whatever they like.
The Scopes court upheld William Jennings Bryan's view that states could constitutionally forbid teaching the scientific evidence for the theory of evolution, rejecting that of Clarence Darrow that truth was truth and could always be taught--whether it favored religion or not. By requiring that the whole truth be taught, Louisiana aligned itself with Darrow; striking down that requirement, the panel holding aligns us with Bryan.
I disagree with this holding; and because we endorse it today, I respectfully dissent.
In 1981 the Louisiana legislature passed the legislation which is the subject of today's controversy. Sections 17:286.1 through 286.7, Louisiana Revised Statutes. Its full text appears as an appendix to the panel opinion, at 765 F.2d 1251, 1258. The general purport of this law is to provide three things:
3. That, if taught, each be taught as a theory, "rather than as proven scientific fact."
I am as capable as the panel of making an extra-record guess that much, if not most, of the steam which drove this enactment was generated by religious people who were hostile to having the theory of evolution misrepresented to school children as established scientific fact and who wished the door left open to acceptance by these children of the Judeo-Christian religious doctrine of Divine Creation. If so, however, they did not seek to further their aim by requiring that religious doctrine be taught in public school. Instead, they chose a more modest tactic--one that I am persuaded does not infringe the Constitution.
That was to provide, as my summary of the statute indicates, that neither evolution nor creation be presented as finally established scientific fact and that, when evolution is taught as a theory, the scientific evidence for such competing theories as a "big bang" production of the universe or for the sudden appearance of highly developed forms of life be given equal time (and vice versa). As I noted at the outset, the record contains affidavits--some of them by highly-qualified scientists who there proclaim themselves agnostics and believers in evolution as a theory--which affirm that the above propositions are correct: that evolution is not established fact and that there is strong evidence that life and the universe came about in a different manner, one perhaps less inconsistent with religious doctrine. At the least, these affidavits make a fact issue that those propositions are true. For purposes of reviewing the summary judgment which our panel's opinion affirms, then, the propositions stated must be taken as established: there are two bona fide views.
It follows that the Louisiana statute requires no more than that neither theory about the origins of life and matter be misrepresented as fact, and that if scientific evidence supporting either view of how these things came about be presented in public schools, that supporting the other must be--so that within the reasonable limits of the curriculum, the subject of origins will be discussed in a balanced manner if it is discussed at all. I see nothing illiberal about such a requirement, nor can I imagine that Galileo or Einstein would have found fault with it. Indeed, so far as I am aware even Ms. O'Hair has never asked for more than equal time.
Let it be conceded, for purposes of argument, that many of those who worked to get this legislation passed did so with a religious motive. It well may be that many who advocated Louisiana's Sunday closing Law, recently upheld by us, did so from such a motive. There being evident a credible secular purpose for that law, however, we upheld it. Home Depot, Inc. v. Guste, 773 F.2d 616 (1985). There can be no doubt that the Louisiana Legislature was empowered under the state constitution to enact the law in question, one mandating a particular course of public school instruction; the Louisiana Supreme Court has squarely so held, on certification from us earlier in the course of this appeal. Aguillard v. Treen, 440 So.2d 704 (La.1983).
Despite this, our panel struck the statute down.
The panel's reasoning is simple. Lemon...
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Edwards v. Aguillard
...Court of Appeals held that the Act violated the Establishment Clause. A suggestion for rehearing en banc was denied over a dissent. 778 F.2d 225 (CA5 1985). We noted probable jurisdiction, 476 U.S. 1103, 106 S.Ct. 1946, 90 L.Ed.2d 355 (1986), and now The Establishment Clause forbids the ena......
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E.E.O.C. v. State of Miss.
...impossible one, since legislatures are not known for providing clear guidance to those interpreting their works". See Aguillard v. Edwards, 778 F.2d 225, 227 (5th Cir.1985) (dissent from denial of Petition for Rehearing En Banc) (scrutinizing legislative motivation for secular purpose in an......