Knowing Reality Through Faith
The first truly profound thing our Athenian citizen from 350 B.C. would learn about modern Washington is that it and the earth are no longer the center of the universe (even if this fact might surprise some modern-day Washingtonians). But the realization that the earth was not at the center would be profoundly disturbing to him in a way that can scarcely be imagined today. The validity of the geocentric theory of the universe was the subject of one of the best-known and most celebrated "trials" in history, a trial that pitted the new science against the old theology. The inherent conflict between science and modern values that continues today was starkly presented in the greatest trial of the fifteenth century: The Church v. Galileo Galilei.
In embracing, revising, and providing substantial evidence for Copernicus's heliocentric theory, Galileo challenged the Aristotelian world view that conformed so comfortably with both experience and the Bible. By any measure, Aristotle was one of the greatest natural philosophers in all history. Aristotle's description of the universe was born of the stuff of modern science--observation. To be sure, Aristotle did not share our modern sensibilities, especially regarding the experimental method, but he was a close observer of natural phenomena.25 He was a scientist in the tradition Thomas Huxley described when he commented that "science is nothing but trained and organized common sense."26 As we can certainly appreciate today, it is obvious to the senses that the sun revolves around the earth. Aristotle's genius and "organized common sense" similarly supported this conclusion:
This view is further supported by the contributions of mathematicians to astronomy, since the observations made as the shapes change by which theorder of the stars is determined, are fully accounted for on the hypothesis that the earth is at the center.27
The Bible raises this common observation to an article of faith. The psalmist proclaims straightforwardly that God "fixed the earth upon its foundation, not to be moved forever." (Psalms 103:5). The Book of Ecclesiastes observes that "the sun rises and the sun goes down: then it presses on to the place where it rises." When Galileo openly challenged the geocentric theory, therefore, much turned on his claim. How, people wondered, should the text of Josue (Joshua 10:12-13) be interpreted? "Josue prayed to the Lord, and said in the presence of Israel, 'Stand still, O sun, at Gabaon, O moon, in the valley of Aialon!' And the sun stood still, and the moon stayed, while the nation took vengeance on its foes." If Galileo was correct, of course, there was no need to command the sun to stand still--it already obeyed this admonition. Both the value of our ordinary senses as well as the integrity of our faith were thus challenged by Galileo's science. It is no wonder that the "law" sought to crush this heresy.
In the fifteenth century, it was simply known beyond serious question that the earth was the center of the universe. Controversy over the stellar configuration mainly revolved around whether Aristotle's (378-322 B.C.) or Ptolemy's (ca. 150 B.C.) model better reconciled the Bible with daily experience. Both models were geocentric and each required a substantial number of artificial assumptions to make them work. During Aristotle's time and to a lesser extent Ptolemy's, as well, natural philosophers did not aspire to exact quantitative agreement between theory and observations. The astronomy of the fourth century B.C. in this way resembled much of psychological science of the twentieth century. Rough approximation was considered a high achievement. It was this lack of agreement between the models and reality that led Pope Leo X in 1514 to call on experts in theology and astronomy for corrections that would enable the church to reform the ecclesiastical calendar. Nicolaus Copernicus answered this call.
Conveniently for my story, Copernicus's principal area of study was the law. He studied church law at the University of Bologna, one of the finest European law schools, and graduated with an advanced degree in canon law from the University of Padua around 1503.28 Together with the law, Copernicus studied medicine, theology, and, of course, mathematics and astronomy. Although he was not a priest, Copernicus spent most of his working years at the Cathedral of Frauenberg, where he conducted his duties as a canon. Throughout these years he sought an answer to the "lack of certitude in the traditional mathematics concerning the composition ofmovements of the spheres of the world."29 His answer literally turned the world upside down. Fearing embarrassment more than persecution, Copernicus waited until 1530 to circulate an outline of his new astronomy. He had good reason to be fearful. For instance, in 1533, Martin Luther condemned his theory with scorn:
People give ear to an upstart astrologer who strove to show that the earth revolves, not the heavens or the firmament, the sun and the moon. Whosoever wishes to appear clever must devise some new system which of all systems, of course, is the very best. This fool wishes to reverse the entire science of astronomy; but Sacred Scripture tells us that Josue commanded the sun to stand still, and not the earth.30
Copernicus's great work was not published until 1543. He received an advance copy on May 24 of that year as he lay on his deathbed. He died a few hours later. The work, De revolutionibus orbium coelestium, was dedicated to Pope Paul III.
If Copernicus's theory cannot be said to have received an overly warm reception in Rome, it was not condemned or banned--at least not yet. This cordial reception was due, at least in part, to the unsigned preface that accompanied the work, written by Andreas Osiander. Osiander, a Lutheran theologian, seeking to avoid theological complications, asserted that the heliocentric theory was merely an hypothesis that was useful for computing the calendar, not a representation of reality. The preface, moreover, was written in a way that suggested that Copernicus himself had composed it. It is quite certain, however, that Copernicus believed that his theory described reality. But, in the church's view, so long as it remained only a hypothesis, it was not threatening enough to ban.
Although in time the church would ban the teaching of Copernicus and censure and eventually condemn Galileo for heresy, its position did not change substantially over the years. The church, it is true, stood steadfastly by its literal interpretation of the Bible, concluding that the theory that the earth revolves around the sun was heretical. The church, however, generally drew a distinction between hypotheses and fact and was inclined to be somewhat tolerant of the heliocentric heresy so long as it was not put forth as fact and thus contrary to the Bible. For Galileo, problems arose when he insisted that scripture should bow before his proof and be interpreted in light of the facts as he found them to be.
The trial of Galileo is almost as well known today as some of the famous trials of recent years. And like its twentieth-century counterparts, Galileo's trial was filled with intrigue and much ambiguity continues toshroud the basic facts. The essential story and its object lessons can be quickly summarized. Galileo was tried for heresy and for allegedly violating an injunction served on him in 1616 "not to hold, teach, or defend in any way, verbally or in writing" the Copernican hypothesis. The specific target of the trial was Galileo's monumental work Dialogue on the Great World Systems. The Dialogue presented a Socratic colloquy between Salviati, who represented the new learning, and Simplicio, who defended the old. The moderator between the past and the future was Sagredo. Although Galileo may have intended the Dialogue to be a balanced presentation, as he maintained at his trial in 1633, it was understood immediately as a devastating critique of Aristotelian philosophy and Ptolemaic astronomy.
Despite his lack of subtlety in the Dialogue, Galileo's defense was that he had never held the view that the earth revolved around the sun. In response to interrogation, "with the threat of torture,"31 Galileo stated that from the time of the 1616 injunction he had held "as most true and indisputable, the opinion of Ptolemy, that is to say, the stability of the earth and the motion of the sun."32 Moreover, despite the apparent arguments forwarded by the Dialogue, Galileo stated categorically, "I affirm therefore, on my conscience, that I do not now hold the condemned opinion and have not held it since the decision of the authorities."33
While physical torture was never really a serious threat, both the process and its conclusion must have seemed to Galileo torture enough. The court convicted Galileo of the heresy of believing "that the sun is the center of the world and does not move from east to west and that the earth moves and is not the center of the world."34 Galileo was sentenced to "abjure, curse, and detest" his errors and heresies and to life imprisonment, which he served under house arrest in his villa outside Florence. In addition, the Dialogue was "prohibited by public edict."
Although Galileo's condemnation was now complete, the church's would soon begin. The church had wielded raw power to quash the new physics. As the proverbial saying goes, it won the battle but was destined to lose the war. Despite the fact that Copernicus had broached the theory more than sixty years before, the church and society generally were not prepared for the new science. It wished that the new learning would go away, and it had the worldly power to make it go away. But the church could make it disappear only for a limited time. When it returned and prevailed, the church would lose more in credibility and prestige than it ever stood to gain by its appeal to faith and its condemnation of the unfaithful. There is a valuable lesson for all lawmakers in this tale.
The church's reaction to Galileo also represents a juncture of sorts in Western thinking. The need to divorce science and faith was becomingincreasingly apparent, though it would take over three hundred years for this doctrine to become firmly entrenched. As science began to tread on the domain previously controlled by priests and sorcerers, these "faiths" had only two choices. They could compete head to head with science or they could strategically withdraw to another plane from which they could make claims to knowledge separate from science. In the West, and especially in the United States, faith retreated to fight another day. The separation of church and state is one manifestation of this withdrawal.
In fact, one aspect of the Galileo affair anticipates a strategy that is central to the tactics employed by the faithful in the modern conflict between church and state. The church was grudgingly tolerant of the heliocentric theory so long as it was proffered merely as a hypothesis that offered advances in computational accuracy, rather than a description of reality. The church was willing to share the intellectual stage with science, so long as science understood who was the star. Today, of course, the church no longer has the star power it enjoyed in the sixteenth century. The modern church shares the lament of Norma Desmond in the movie Sunset Boulevard:
JOE GILLIS: You used to be in pictures. You used to be big.
NORMA DESMOND: I am big. It's the pictures that got small.35
Making Law Through Religion
Thus, from the war of nature, from famine and death, the most exalted object which we are capable of conceiving, namely, the production of the higher animals, directly follows. There is grandeur in this view of life, with its several powers, having been originally breathed by the Creator into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being evolved.
--CHARLES DARWIN, Origin of Species (final paragraph)
The United States has been called the most religious nation on earth. Although this might be a generous description, it bespeaks at least the strong position religion occupies in American society. Yet we are also a land in which the state is constitutionally separated from the church. This might appear to be a paradox of sorts, since a nation devoted to religion would presumably wish the state to back up that devotion. TheFounding Fathers, however, saw no paradox, for they believed that the state must be kept separate from the church for religion's own good. Somewhat contrary to the modern fear that religion will usurp the state's functions, the framers of the Constitution feared that the state would usurp religion. The First Amendment contains two clauses directed at this matter. One guarantees the individual the right to freely exercise his or her religion and the other forbids the state from "establishing" religion. In short, government is forbidden from interfering with both religious individuals and religious institutions.
In contrast, religions are not prohibited from fully participating in the affairs of government. The Supreme Court has held repeatedly that religions must be allowed to contribute ideas and influence just as other institutions do in a participatory democracy. Still, government cannot adopt policies in the name of religion. Hence, Pat Robinson, an ordained minister, could run for president in the name of religion, and he could advocate policies that his followers believe in, but he could not govern on the basis of religious premises. He would need to articulate an alternative argument to support his action in the unlikely event that he should become President.
The two religion clauses thus require a balancing act of death-defying proportions. Walking the tightrope between the free exercise and establishment clauses creates a fascinating dynamic between the church and the state. Most religions continue to have strong prescriptive programs for society. But religion in the United States does not have the power of the sixteenth-century Vatican, so it must seek out more indirect ways to satisfy its lawmaking desires. The courts' (and the Constitution's) task is to ferret out policies driven by religious zeal and to permit policies with independent secular merit. Just as in the sixteenth century, the church continues to be informed by its view of nature. As part of its regulatory agenda, the church often tries to impose this view on secular society.
By the twentieth century, of course, Copernicus's heliocentric theory had fully won out. The church has for some time reconciled itself to a mobile earth and a fixed sun. In fact, in a 1994 memorandum, Pope John Paul II apologized for the church's past sins against Galileo. Now that science was the star, the new question was to what extent faith might share the intellectual stage. By the late nineteenth century and throughout the twentieth, evolution emerged as the issue that would define the borderland where law, science, and faith met. How much as well as how little things had changed can be seen in the 1925 prosecution of John Scopes.36 The so-called Scopes Monkey trial, which was profoundly symbolic but had little legal significance, was a circus to match any that came before or would follow.
John Scopes, a high school biology teacher, had challenged a Tennessee law that prohibited the teaching of evolution. The law made it unlawful "to teach any theory that denies the story of divine creation as taught by the Bible and to teach instead that man was descended from a lower order of animals." Scopes was represented by a team of lawyers that included the irascible Clarence Darrow. The case for Tennessee was led by the pious William Jennings Bryan, a populist and three-time Democratic candidate for president. Part of the trial was held on the courthouse lawn with a crowd of more than 5,000 in attendance. All of the proceedings were brought to a national audience by an army of reporters, including the inimitable H. L. Mencken. Around the courthouse, banners flew and lemonade stands offered relief from the July heat. Chimpanzees, said to be witnesses for the prosecution, performed in a sideshow on Main street. The Scopes trial was an early illustration of the spectacle that celebrity trials could become in the modern world.
The Scopes trial was never really about whether John Scopes was guilty, since he had deliberately violated the law in order to test its constitutionality. But the trial also was not really about the law's constitutionality, since this determination is not triable by a jury--it is decided by a court as a matter of law. In the end, like so many other modern trial spectacles, the trial was about American society and what happens when values clash. No better illustration of the clash between sectarian piety and secular zeal could be offered than the courtroom confrontation between William Jennings Bryan and Clarence Darrow. In a highly unusual procedural move, Darrow called Bryan to the stand and crossexamined him on interpreting the Bible. The following famous exchange occurred on the seventh day of the trial:
DARROW: You have given considerable study to the Bible, haven't you, Mr. Bryan?
BRYAN: Yes, sir, I have tried to.
DARROW: Then you have made a general study of it?
BRYAN: Yes, I have; I have studied the Bible for about fifty years, or some time more than that, but, of course, I have studied it more as I have become older than when I was a boy.
DARROW: You claim that everything in the Bible should be literally interpreted?
BRYAN: I believe everything in the Bible should be accepted as it is given there: some of the Bible is given illustratively. For instance: "Ye are the salt of the earth." I would not insist that man was actually salt, or that he had flesh of salt, but it is used in the sense of salt as saying God's people.
DARROW: But when you read that Jonah swallowed the whale--or that the whale swallowed Jonah--excuse me please--how do you literally interpret that?
BRYAN: When I read that a big fish swallowed Jonah--it does not say whale. That is my recollection of it. A big fish, and I believe it, and I believe in a God who can make a whale and can make a man and make both what He pleases.
DARROW: Now, you say, the big fish swallowed Jonah, and he there remained how long--three days--and then he spewed him upon the land. You believe that the big fish was made to swallow Jonah? BRYAN: I am not prepared to say that; the Bible merely says it was done.
DARROW: You don't know whether it was the ordinary run of fish, or made for that purpose?
BRYAN: You may guess; you evolutionists guess ... .
DARROW: You are not prepared to say whether that fish was made especially to swallow a man or not?
BRYAN: The Bible doesn't say, so I am not prepared to say.
DARROW: But do you believe He made them--that He made such a fish and that it was big enough to swallow Jonah?
BRYAN: Yes, sir. Let me add: One miracle is just as easy to believe as another.
DARROW: Just as hard?
BRYAN: It is hard to believe for you, but easy for me. A miracle is a thing performed beyond what man can perform. When you get within the realm of miracles; and it is just as easy to believe the miracle of Jonah as any other miracle in the Bible.
DARROW: Perfectly easy to believe that Jonah swallowed the whale?
BRYAN: If the Bible said so; the Bible doesn't make as extreme statements as evolutionists do ... .
DARROW: The Bible says Joshua commanded the sun to stand still for the purpose of lengthening the day, doesn't it, and you believe it?
Bryan: I do.
DARROW: Do you believe at that time the entire sun went around the earth?
BRYAN: No, I believe that the earth goes around the sun.
DARROW: Do you believe that the men who wrote it thought that the day could be lengthened or that the sun could be stopped?
BRYAN: I don't know what they thought.
DARROW: You don't know?
BRYAN: I think they wrote the fact without expressing their own thoughts.
DARROW: If the day was lengthened by stopping either the earth or the sun, it must have been the earth?
BRYAN: Well, I should say so.
DARROW: Now, Mr. Bryan, have you ever pondered what would have happened to the earth if it had stood still?
DARROW: You have not?
BRYAN: No; the God I believe in could have taken care of that, Mr. Darrow.
DARROW: I see. Have you ever pondered what would naturally happen to the earth if it stood still suddenly?
DARROW: Don't you know it would have been converted into molten mass of matter?
BRYAN: You testify to that when you get on the stand, I will give you a chance.
DARROW: Don't you believe it?
BRYAN: I would want to hear expert testimony on that.
DARROW: You have never investigated that subject?
BRYAN: I don't think I have ever had the question asked.
DARROW: Or ever thought of it?
BRYAN: I have been too busy on things that I thought were of more importance than that.
DARROW: You believe the story of the flood to be a literal interpretation?
BRYAN: Yes, sir.
DARROW: When was that flood?
BRYAN: I would not attempt to fix the date. The date is fixed, as suggested this morning.
DARROW: About 4004 B.C.?
BRYAN: That has been the estimate of a man that is accepted today. I would not say it is accurate.
DARROW: That estimate is printed in the Bible?
BRYAN: Everybody knows, at least, I think most of the people know, that was the estimate given.
DARROW: But what do you think the Bible itself says? Don't you know how it was arrived at?
BRYAN: I never made a calculation.
DARROW: A calculation from what?
BRYAN: I could not say.
DARROW: From the generations of man?
BRYAN: I would not want to say that.
DARROW: What do you think?
BRYAN: I do not think about things I don't think about.
DARROW: Do you think about things you do think about?
BRYAN: Well, sometimes.37
In a nation in which church and state are ostensibly separate, outright banning of scientific theory was not likely to persist. And it did not. But it was not until 1968 that the United States Supreme Court struck down a Scopes-era Arkansas law that had been modeled on the Tennessee statute. The Court held in Epperson v. Arkansas38 that the "First Amendment does not permit the state to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma." Arkansas had violated the Establishment Clause that proscribed it from enacting into state law "the religious view of some of its citizens" by prohibiting the teaching of evolution.
Taking a chapter out of the history books, the faithful figured that if they could not be the star they would at least seek to share the stage. In 1982, for instance, Louisiana passed a law, the Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act, which provided that evolution could not be taught in Louisiana public schools unless accompanied by instruction in creation science. Under the statute, schools could decide not to teach both evolution and creation science; but if they taught that man might have evolved from apes then they had to teach that man might have been created by God. Under the act, either both sides got on stage or the show did not go on. The Louisiana law was challenged by parents, teachers, and many religious leaders as an unconstitutional establishment of religion by the state. The case reached the United States Supreme Court in 1987.
In Edwards v. Aguillard,39 the Supreme Court, with Justice Brennan writing for the Court, struck down the Louisiana law on the intuitively sound but constitutionally dubious basis that Louisiana's primary purpose was to advance religion. It was constitutionally dubious because there was little real evidence in the legislative record to support this conclusion. In fact, proponents of the law had assiduously avoided making any statements that would make the law appear religiously motivated. The Court's conclusion was based, as Judge Gee of the Fifth Circuit Court of Appeals stated in dissent to a similar holding in the lower court, on "its visceral knowledge regarding what must have motivated the legislators." 40 The avowed purpose of the law, as explicitly stated in the statute itself, was "protecting academic freedom." The legislative history, to theextent any existed, largely supported the conclusion that this was the motivating purpose behind the law.
In assuming that Louisiana had ulterior, sinister, motives in enacting the law, Justice Brennan ignored traditional principles of constitutional interpretation that mandate that a legislature be presumed to have acted constitutionally. It is a basic and long-standing principle that the Court owes due deference to the more political branches of government. And Justice Brennan's opinion ranked high on the constitutional dubiousness scale for a couple of additional reasons. His opinion departed from precedent in finding that a constitutionally defective purpose alone would invalidate the law. Under the prevailing test, the Court had previously always considered whether the law excessively entangled the state in the affairs of religion or had the effect of advancing religion. In other words, in the past, the Court would also have had to find that the law entangled government in religious affairs or advanced religion before concluding that a constitutional violation of establishing religion had occurred. The fact that governmental motives happen to coincide with religious principles is an unsteady altar on which to place a constitutional violation. The fact that a legislative policy is strongly supported by religious groups does not mean it should be suspected of unconstitutionally advancing religion. Such an approach would have doomed abolitionist legislation of the nineteenth century and many humanitarian laws of the twentieth century.
It appears, then, that the Court believed that the Louisiana legislature acted out of religious fervor because it was convinced there was no scientific content to creationism. The logic is straightforward: Louisiana could have had only two purposes in passing the law, secular or sectarian. Since creation science is not real science, then there is no secular purpose. Therefore, Louisiana must have been motivated by a sectarian purpose. The whole argument depended on the Court's showing that creation science was no science. But the Court never made this demonstration.
Justice Scalia wrote a stinging dissent in which he accused the majority of narrow-minded illiberality for rejecting creation science without considering the evidence for it:
[We cannot] say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation's stated purpose must be a lie. Yet that illiberal judgment, that Scopes-in-reverse, is ultimately the basis on which the Court's facile rejection of the Louisiana Legislature's purpose must rest.41
Scalia is correct that unreflective rejection of one proposed scientific explanation is as bad as unreflective acceptance of another.
In Edwards, Louisiana defended its law on the basis of two claims. It first defended creation science as a bona fide science. The basic theory holds that life appeared abruptly in the fossil record and has remained relatively static throughout time. As a legitimate scientific theory, Louisiana asserted, creation science could be taught without appeal to the Bible. According to the "hundreds and hundreds" of scientists cited by the state, creation theory accords better with the facts than does evolution. Moreover, since there were only two viable theories of life's origins, teaching creation science would highlight the flaws allegedly replete in evolutionary theory.
This claim for the validity of creation science led into the second prong of attack, a challenge to the viability of evolution. Louisiana asserted that evolution was not a "fact" and, indeed, might be better described as a "guess" or even a "myth." As myth, it has become a central tenet of "secular humanism," which the Supreme Court has described in other cases as tantamount to "religion." Through this reasoning, the teaching of evolution is itself unconstitutional as a violation of the Establishment Clause.
In Edwards, the Court missed an invaluable opportunity to make a statement about its and the Constitution's commitment to science. In fact, a group of Nobel laureates filed an amicus ("friend of the Court") brief that sought to demonstrate the scientific foundation for evolution and the lack of any similar grounding for the theory of creation. Despite this expert assistance, the Court seemed fearful of substantively evaluating the scientific merit of creation science. In the opinion, it avoided the subject entirely. I suspect that this was due to the Justices' insecurity in their knowledge of science. In short, the Court was fearful of examining whether creation science or evolution were "sciences" out of concern that they would not be able to recognize science when they saw it. Although the Nobel laureates' brief would have made this task simple enough, it would have established a troublesome precedent. Henceforth, the Court would have been obliged to distinguish between good and bad science, at least in constitutional cases. Instead, the Court relied on its own prejudices regarding creation science and assumed that the Louisiana Legislature must have been motivated by a desire to advance religion.
But Justice Scalia also did not engage in a meaningful examination of the methodological rigor of creation science. He sought to demonstrate merely that Louisiana might have acted in good-faith pursuit of educational goals and was not motivated primarily by religion. He was,for instance, impressed with the testimony before the Louisiana Legislature on behalf of the law. It was, Scalia observed, "devoted to lengthy and, to the layman, seemingly expert scientific expositions on the origin of life."42 Particularly impressive, he noted, was the fact that this testimony "touched upon" a broad range of subjects, including "biology, paleontology, genetics, astronomy, probability analysis, and biochemistry." 43 But Scalia, like Brennan, never seriously parsed the scientific evidence for the theory of creation and so could not say whether Louisiana's stated purpose for the law was legitimate. Although the Constitution expects the Supreme Court to be deferential to state legislatures, it does not require it to be a dupe for them. As "a layman," Scalia was willing to be seduced by the "quite impressive academic credentials" of the state's scientists. For Scalia to believe that Louisiana acted in good faith means that he found some scientific grounding for creation science. Rather than consider whether this was truly so, Scalia simply abdicated any responsibility for this inquiry to the state's experts.
Edwards illustrates a trend we will confront throughout the sundry topics in the pages ahead. The Supreme Court and courts generally are reluctant to delve too deeply into scientific matters. This insecurity with science, however, has real costs. In particular, it creates an assortment of doctrinal problems for the law, as justices and judges do somersaults to avoid substantive scientific analysis. In Edwards, for example, it led the Court to distort its own First Amendment jurisprudence in relying disproportionately on legislative purposes, purposes not expressed in the legislative record. This rendered the decision weaker than it could have been and made it a precedent that might create problems in future cases. The real reason the Court invalidated the Louisiana law was that it did not believe creation science was a science, so the legislature's stated motives were a lie. The Court's ignorance of science caused it to miss an invaluable opportunity to demonstrate this lie by showing that creation science is a fraud.