What is "the most scientifically irresponsible passage in United States Reports"? According to Jim Chen it is "Justice Scalia’s gratuitous swipe at evolutionary biology" in his dissent from denial of certiorari in Tangipahoa Parish Board of Education v. Freiler. Drawing upon his article "Legal Mythmaking in a Time of Mass Extinctions: Reconciling Stories of Origins with Human Destiny" from the Harvard Environmental Law Review, Chen lambastes Scalia in this Jurisdynamics post:
In Tangipahoa Parish, a Louisiana school board had declared that lessons on "the Scientific Theory of Evolution" would "be presented to inform students of the scientific concept and not . . . to influence or dissuade the Biblical version of Creation or any other concept." The U.S. Court of Appeals for the Fifth Circuit duly invalidated the school board’s disclaimer. Public expressions challenging the scientific validity of evolution have no chance of withstanding the Supreme Court’s leading decisions regarding legal efforts to restrict the teaching of evolution. This is routine, settled law, a straightforward application of Epperson v. Arkansas, 393 U.S. 97 (1968), and Edwards v. Aguillard, 482 U.S. 578 (1987).
Justice Antonin Scalia, however, took extreme pains to dissent from this decision. He derided the appeals court’s reasoning — and, by extension, that of his colleagues who voted to deny urther review — as "quite simply absurd." He found no reasonable prospect of treating the school board’s "reference to . . . a reality of religious literature" as an unconstitutional "establishment of religion." After expressing seeming disapproval of Epperson and Edwards, Justice Scalia berated his colleagues for advancing further "the much beloved secular legend of the Monkey Trial."
Justice Scalia’s allusion to the 1925 prosecution of John Scopes for teaching evolution in a Tennessee high school represented a transparent political appeal to the shockingly powerful lobby that opposes the teaching of evolution in American public schools.Justice Scalia’s dissent in Tangipahoa Parish deserves condemnation because no other legal authority comes as close to supporting the teaching of creationism. The creationist lobby goes by the name "intelligent design" these days, but the enemy deserves to be called by its proper name: creationism. Justice Scalia’s shameless pandering gives judicial aid and comfort of the highest order to the creationist lobby.
Here is the relevant portion of Justice Scalia's opinion:
The only aspect of the disclaimer that could conceivably be regarded as going beyond what the rehearing statement purports to approve is the explicit mention–as an example–of “the Biblical version of Creation.” To think that this reference to (and plainly not endorsement of) a reality of religious literature–and this use of an example that is not a contrived one, but to the contrary the example most likely to come into play–somehow converts the otherwise innocuous disclaimer into an establishment of religion is quite simply absurd.I don't know if Scalia's opinion qualifies as the most scientifically irresponsible passage ever — I am not sure that the scientific soundness of a school board policy is the proper measure of its constitutionality — but I see no defense of the reference to the Scopes trial. At best, it was an ill-considered rhetorical flourish. At worst, it reflected a shocking level of scientific illiteracy for such an esteemed and intelligent jurist.
In Epperson v. Arkansas, 393 U.S. 97 (1968), we invalidated a statute that forbade the teaching of evolution in public schools; in Edwards v. Aguillard, 482 U.S. 578 (1987), we invalidated a statute that required the teaching of creationism whenever evolution was also taught; today we permit a Court of Appeals to push the much beloved secular legend of the Monkey Trial one step further. We stand by in silence while a deeply divided Fifth Circuit bars a school district from even suggesting to students that other theories besides evolution–including, but not limited to, the Biblical theory of creation–are worthy of their consideration. I dissent.
If Justice Scalia's Tangipahoa Parish opinion is not the source of "the most scientifically irresponsible passage" ever to appear in a Supreme Court opinion, what is? Are there any nominations?
UPDATE: Several commenters have suggested that Justice Scalia's reference to "the much beloved secular legend of the Monkey Trial" was disparaging the historically inaccurate conventional narrative of what occurred at the Scopes trial. As Hans Bader notes in the comments, the trial was the product of a "collusive arrangement" to challenge a rarely enforced state statute. Moreover, as Jim Lindgren has noted, the pro-evolution textbook in question was horribly racist and tied evolutionary theory to eugenics and social darwinism.
Under this reading, the "secular legend of the Monkey Trial" to which Scalia refers is the myth that Creationists are (in Hans Bader's words) "a mortal threat to education and a free society," and the legend is "push[ed] . . . one step further" by excluding any reference to creationism from public schools. This is a reasonable interpretation of the reference, but I don't think it gets Justice Scalia off the hook. In the next sentence he suggests that evolution is simply one among many competing theories, "including, but not limited to, the Biblical theory of creation." This suggestion is certainly scientifically irresponsible, and was not necessary for Justice Scalia to make his doctrinal point. When placed in this context, I unconvinced that Justice Scalia's reference to the Scopes Trial was as benign as some suggest, though I open to being persuaded on this point.
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