Daniel v. Waters

Decision Date10 April 1975
Docket NumberNo. 74-2230,74-2230
Citation515 F.2d 485
PartiesJoseph C. DANIEL, Jr., et al., Plaintiffs-Appellants, v. Hugh WATERS, Chairman, Textbook Commission of the State of Tennessee, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Frederic S. LeClercq, Knoxville, Tenn., for plaintiffs-appellants.

Milton P. Rice, Atty. Gen. of Tenn., Nashville, Tenn., for defendants-appellees.

Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.

EDWARDS, Circuit Judge.

We are confronted in this appeal by a 1974 version of the legislative effort to suppress the theory of evolution which produced the famous Scopes "monkey trial" of 1925. See Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). In this instance the Tennessee Legislature has sought to avoid direct suppression of speech and has eschewed direct criminal sanctions. But the purpose of establishing the Biblical version of the creation of man over the Darwinian theory of the evolution of man is as clear in the 1973 statute as it was in the statute of 1925.

Plaintiffs are teachers of biology in Tennessee public schools, some of whom are also parents of public school students, plus the National Association of Biology Teachers. The defendants are members of the Tennessee state board which is charged with the responsibility of selecting public school textbooks. Jurisdiction is invoked under 28 U.S.C. § 1343(3) (1970).

The statute at issue, Chapter 377 of the 1973 Public Acts of Tennessee, is reproduced below. We have underlined the specific language which plaintiffs-appellants assert to be patently violative of the First and Fourteenth Amendments to the Constitution of the United States:

SECTION 1. Tennessee Code Annotated, Section 49-2008, is amended by adding the following paragraph:

Any biology textbook used for teaching in the public schools, which expresses an opinion of, or relates a theory about origins or creation of man and his world shall be prohibited from being used as a textbook in such system unless it specifically states that it is a theory as to the origin and creation of man and his world and is not represented to be scientific fact. Any textbook so used in the public education system which expresses an opinion or relates to a theory or theories shall give in the same text-book and under the same subject commensurate attention to, and an equal amount of emphasis on, the origins and creation of man and his world as the same is recorded in other theories, including, but not limited to, the Genesis account in the Bible. The provisions of this Act shall not apply to use of any textbook now legally in use, until the beginning of the school year of 1975-76; provided, however, that the textbook requirements stated above shall in no way diminish the duty of the State Textbook Commission to prepare a list of approved standard editions of textbooks for use in the public schools of the state as provided in this section. Each local school board may use textbooks or supplementary material as approved by the State Board of Education to carry out the provisions of this section. The teaching of all occult or satanical beliefs of human origin is expressly excluded from this Act.

SECTION 2. Provided, however, that the Holy Bible shall not be defined as a textbook, but is hereby declared to be a reference work and shall not be required to carry the disclaimer above provided for textbooks.

SECTION 3. The provisions of this Act are hereby declared to be severable; and if any of its sections, provisions, clauses, or parts be held unconstitutional or void, then the remainder of this Act shall continue in full force and effect, it being the legislative intent now hereby declared that this Act would have been adopted even if such unconstitutional or void matter had not been included herein.

SECTION 4. This Act shall take effect upon becoming a law, the public welfare requiring it.

1973 Tenn.Pub.Acts, Chap. 377 (Emphasis added.)

On the filing of the complaint and a motion for a preliminary injunction in this case, the District Judge, presumably because the complaint alleged the unconstitutionality of a state statute of statewide application, initiated the convening of a three-judge court. (See 28 U.S.C. §§ 2281, 2284 (1970) ).

The State of Tennessee then appeared and filed a motion noting that the same question was then pending in the Chancery Court of Davidson County, Tennessee. Tennessee moved that the federal court dismiss the complaint, or in the alternative, enter an order of abstention pending final state court adjudication.

Without a hearing and without reaching the merits, the three-judge court entered an order, taking notice of the state court litigation, abstaining from adjudication pending final disposition of same, but retaining jurisdiction of the case.

Plaintiffs-appellants thereupon filed a jurisdictional statement seeking an appeal to the United States Supreme Court. After a Supreme Court order for a response from the State and the filing of same, the following order was entered:

The judgment is vacated and the case is remanded to the United States District Court for the Middle District of Tennessee so that it may enter a fresh judgment from which a timely appeal may be taken to the Court of Appeals.

Although a protective appeal had previously been timely filed with this court, the three-judge District Court reentered its order of February 26, 1974, and plaintiffs-appellants have filed notice of appeal, which appeal has now been briefed and argued before this court.

The parties have advised that on September 9, 1974, the Chancery Court of Davidson County, Tennessee, decided the case before it on the merits, holding that the statute attacked was in violation of the First and Fourteenth Amendments. The State has appealed, thereby suspending the effectiveness of the Circuit Court decree until the Supreme Court of Tennessee decides the case.


Abstention is an appropriate response to a federal complaint alleging unconstitutionality of a state statute where state interpretation of its own ambiguous statute might serve to render it inoffensive to the federal Constitution. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972).

The federal courts are not permitted otherwise, however, to shut their doors to a complaint of federal constitutional violation even if there is a possible state remedy which is being pursued. Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed.2d 510 (1913); Kasper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). In this last case the Supreme Court said:

If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction. Baggett v. Bullitt, 377 U.S. 360, 375-379, (84 S.Ct. 1316, 1324-1326, 12 L.Ed.2d 377). Thus, "recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law." England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415-416 (84 S.Ct. 461, 465, 11 L.Ed.2d 440).

Harman v. Forssenius, supra at 534-35, 85 S.Ct. at 1182.

With these principles in mind, we turn to an examination of the statute itself against the federal constitutional principles which are relied upon.


The First Amendment to the Constitution of the United States says in applicable part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .

The Fourteenth Amendment to the Constitution of the United States says in applicable part No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S.Const. amend XIV, § 1.

We have previously indicated that the statute complained of does not directly forbid the teaching of evolution. It does, however, prohibit the selection of any textbook which teaches evolution unless it also contains a disclaimer stating that such doctrine is "a theory as to the origin and creation of man and his world and is not represented to be scientific fact." And the same statute expressly requires the inclusion of the Genesis version of creation (if any version at all is taught) while permitting that version alone to be printed without the above disclaimer. (Section 2 of the statute quoted above says: "Provided, however, that the Holy Bible shall not be defined as a textbook, but is hereby declared to be a reference work, and shall not be required to carry the disclaimer above provided for textbooks.") Furthermore, "the teaching of all occult or satanical beliefs of human origin is expressly excluded from this act," presumably meaning that religious beliefs deemed "occult" or "satanical" need not be printed in biology texts along with the other theories.

We believe that in several respects the statute under consideration is unconstitutional on its face, that no state court interpretation of it can save it, and that in this case, the District Court clearly erred in abstaining from rendering a determination of the unconstitutionality of the statute on its face.

First, the statute requires that any textbook which expresses an opinion about the origin of man "shall be prohibited from being used" unless the book specifically states that the opinion is "a theory" and "is not represented to be scientific fact." The statute also requires that the Biblical account of creation (and...

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