EDWARDS, GOVERNOR OF LOUISIANA, ET AL. v. AGUILLARD ET AL.
 
SUPREME COURT OF THE UNITED STATES
 
482 U.S. 578
 
December 10, 1986, Argued
June 19, 1987, Decided
 

JUSTICE BRENNAN delivered the opinion of the Court. 
 
I

The Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in "creation science."  No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught. Ibid. The theories of evolution and creation science are statutorily defined as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences."

Appellees, who include parents of children attending Louisiana public schools, Louisiana teachers, and religious leaders, challenged the constitutionality of the Act in District Court, seeking an injunction and declaratory relief.  Appellants, Louisiana officials charged with implementing the Act, defended on the ground that the purpose of the Act is to protect a legitimate secular interest, namely, academic freedom.  Appellees attacked the Act as facially invalid because it violated the Establishment Clause and made a motion for summary judgment. The District Court granted the motion. The court held that there can be no valid secular reason for prohibiting the teaching of evolution, a theory historically opposed by some religious denominations. The court further concluded that "the teaching of 'creation-science' and 'creationism,' as contemplated by the statute, involves teaching 'tailored to the principles' of a particular religious sect or group of sects."  The District Court therefore held that the Creationism Act violated the Establishment Clause either because it prohibited the teaching of evolution or because it required the teaching of creation science with the purpose of advancing a particular religious doctrine. The court of Appeals affirmed.  We noted probable jurisdiction, and now affirm.

II
The Establishment Clause forbids the enactment of any law "respecting an establishment of religion."  The Court has applied a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Lemon v. Kurtzman (1971). State action violates the Establishment Clause if it fails to satisfy any of these prongs.  

In this case, the Court must determine whether the Establishment Clause was violated in the special context of the public elementary and secondary school system. States and local school boards are generally afforded considerable discretion in operating public schools.  "At the same time . . . we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment...."
Therefore, in employing the three-pronged Lemon test, we must do so mindful of the particular concerns that arise in the context of public elementary and secondary schools. We now turn to the evaluation of the Act under the Lemon test.

III
Lemon's first prong focuses on the purpose that animated adoption of the Act. "The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion."  A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose. This intention may be evidenced by promotion of religion in general or by advancement of a particular religious belief. If the law was enacted for the purpose of endorsing religion, "no consideration of the second or third criteria [of Lemon] is necessary." In this case, appellants have identified no clear secular purpose for the Louisiana Act.
 
True, the Act's stated purpose is to protect academic freedom.  This phrase might, in common parlance, be understood as referring to enhancing the freedom of teachers to teach what they will. The Court of Appeals, however, correctly concluded that the Act was not designed to further that goal.  We find no merit in the State's argument that the "legislature may not [have] used the terms 'academic freedom' in the correct legal sense. They might have [had] in mind, instead, a basic concept of fairness; teaching all of the evidence."  Even if "academic freedom" is read to mean "teaching all of the evidence" with respect to the origin of human beings, the Act does not further this purpose. The goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science.

While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham. It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum. During the legislative hearings, Senator Keith stated: "My preference would be that neither [creationism nor evolution] be taught."  Such a ban on teaching does not promote -- indeed, it undermines -- the provision of a comprehensive scientific education.

It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Indeed, the Court of Appeals found that no law prohibited Louisiana public school teachers from teaching any scientific theory.  As the president of the Louisiana Science Teachers Association testified, "any scientific concept that's based on established fact can be included in our curriculum already, and no legislation allowing this is necessary." The Act provides Louisiana schoolteachers with no new authority. Thus the stated purpose is not furthered by it.

The Alabama statute held unconstitutional in Wallace v. Jaffree, supra, is analogous.  In Wallace, the State characterized its new law as one designed to provide a 1-minute period for meditation. We rejected that stated purpose as insufficient, because a previously adopted Alabama law already provided for such a 1-minute period. Thus, in this case, as in Wallace, "appellants have not identified any secular purpose that was not fully served by [existing state law] before the enactment of [the statute in question]."

Furthermore, the goal of basic "fairness" is hardly furthered by the Act's discriminatory preference for the teaching of creation science and against the teaching of evolution.  While requiring that curriculum guides be developed for creation science, the Act says nothing of comparable guides for evolution. Similarly, resource services are supplied for creation science but not for evolution. Only "creation scientists" can serve on the panel that supplies the resource services. The Act forbids school boards to discriminate against anyone who "chooses to be a creation-scientist" or to teach "creationism," but fails to protect those who choose to teach evolution or any other noncreation science theory, or who refuse to teach creation science.

If the Louisiana Legislature's purpose was solely to maximize the comprehensiveness and effectiveness of science instruction, it would have encouraged the teaching of all scientific theories about the origins of humankind. But under the Act's requirements, teachers who were once free to teach any and all facets of this subject are now unable to do so. Moreover, the Act fails even to ensure that creation science will be taught, but instead requires the teaching of this theory only when the theory of evolution is taught. Thus we agree with the Court of Appeals' conclusion that the Act does not serve to protect academic freedom, but has the distinctly different purpose of discrediting "evolution by counterbalancing its teaching at every turn with the teaching of creationism...

It was this link that concerned the Court in Epperson v. Arkansas, 393 U.S. 97 (1968), which also involved a facial challenge to a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas antievolution law did not explicitly state its predominate religious purpose, the Court could not ignore that "the statute was a product of the upsurge of 'fundamentalist' religious fervor" that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible.

These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. The term "creation science" was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith's leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator.  Senator Keith also cited testimony from other experts to support the creation-science view that "a creator [was] responsible for the universe and everything in it."  The legislative history therefore reveals that the term "creation science," as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind. 

Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act's primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. The sponsor of the Creationism Act, Senator Keith, explained during the legislative hearings that his disdain for the theory of evolution resulted from the support that evolution supplied to views contrary to his own religious beliefs. According to Senator Keith, the theory of evolution was consonant with the "cardinal principle[s] of religious humanism, secular humanism, theological liberalism, aetheistism [sic]."

In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects. As in Epperson, the legislature passed the Act to give preference to those religious groups which have as one of their tenets the creation of humankind by a divine creator. The "overriding fact" that confronted the Court in Epperson was "that Arkansas' law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with . . . a particular interpretation of the Book of Genesis by a particular religious group."  Similarly, the Creationism Act is designed either to promote the theory of creation science which embodies a particular religious tenet by requiring that creation science be taught whenever evolution is taught or to prohibit the teaching of a scientific theory disfavored by certain religious sects by forbidding the teaching of evolution when creation science is not also taught. The Establishment Clause, however, "forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma." 

The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety.  The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious  purpose. The judgment of the Court of Appeals therefore is

Affirmed.
 
 

JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, dissenting.

Even if I agreed with the questionable premise that legislation can be invalidated under the Establishment Clause on the basis of its motivation alone, without regard to its effects, I would still find no justification for today's decision. The Louisiana legislators who passed the "Balanced Treatment for Creation-Science and Evolution-Science Act", each of whom had sworn to support the Constitution, were well aware of the potential Establishment Clause problems and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act overwhelmingly and specifically articulated the secular purpose they meant it to serve. Although the record contains abundant evidence of the sincerity of that purpose (the only issue pertinent to this case), the Court today holds, essentially on the basis of "its visceral knowledge regarding what must have motivated the legislators," that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent. Had requirements of the Balanced Treatment Act that are not apparent on its face been clarified by an interpretation of the Louisiana Supreme Court, or by the manner of its implementation, the Act might well be found unconstitutional; but the question of its constitutionality cannot rightly be disposed of on the gallop, by impugning the motives of its supporters.

I

This case arrives here in the following posture: The Louisiana Supreme Court has never been given an opportunity to interpret the Balanced Treatment Act, State officials have never attempted to implement it, and it has never been the subject of a full evidentiary hearing. We can only guess at its meaning. We know that it forbids instruction in either "creation-science" or "evolution-science" without instruction in the other, but the parties are sharply divided over what creation science consists of. Appellants insist that it is a collection of educationally valuable scientific data that has been censored from classrooms by an embarrassed scientific establishment. Appellees insist it is not science at all but thinly veiled religious doctrine. Both interpretations of the intended meaning of that phrase find considerable support in the legislative history.

At least at this stage in the litigation, it is plain to me that we must accept appellants' view of what the statute means. To begin with, the statute itself defines "creation-science" as "the scientific evidences for creation and inferences from those scientific evidences."  If, however, that definition is not thought sufficiently helpful, the means by which the Louisiana Supreme Court will give the term more precise content is quite clear -- and again, at this stage in the litigation, favors the appellants' view. "Creation science" is unquestionably a "term of art,"  and thus, under Louisiana law, is "to be interpreted according to [its] received meaning and acceptation with the learned in the art, trade or profession to which [it] refer[s]."  The only evidence in the record of the "received meaning and acceptation" of "creation science" is found in five affidavits filed by appellants. In those affidavits, two scientists, a philosopher, a theologian, and an educator, all of whom claim extensive knowledge of creation science, swear that it is essentially a collection of scientific data supporting the theory that the physical universe and life within it appeared suddenly and have not changed substantially since appearing. These experts insist that creation science is a strictly scientific concept that can be presented without religious reference.  At this point, then, we must assume that the Balanced Treatment Act does not require the presentation of religious doctrine....

A few principles have emerged from our cases, principles which should, but to an unfortunately large extent do not, guide the Court's application of Lemon today. It is clear, first of all, that regardless of what "legislative purpose" may mean in other contexts, for the purpose of the Lemon test it means the "actual" motives of those responsible for the challenged action. Thus, if those legislators who supported the Balanced Treatment Act in fact acted with a "sincere" secular purpose, the Act survives the first component of the Lemon test, regardless of whether that purpose is likely to be achieved by the provisions they enacted.

Our cases have also confirmed that when the Lemon Court referred to "a secular . . . purpose,"  it meant "a secular purpose." The author of Lemon, writing for the Court, has said that invalidation under the purpose prong is appropriate when "there [is] no question that the statute or activity was motivated wholly by religious considerations." Thus, the majority's invalidation of the Balanced Treatment Act is defensible only if the record indicates that the Louisiana Legislature had no secular purpose.

It is important to stress that the purpose forbidden by Lemon is the purpose to "advance religion." Our cases in no way imply that the Establishment Clause forbids legislators merely to act upon their religious convictions. We surely would not strike down a law providing money to feed the hungry or shelter the homeless if it could be demonstrated that, but for the religious beliefs of the legislators, the funds would not have been approved. Also, political activism by the religiously motivated is part of our heritage. Notwithstanding the majority's implication to the contrary we do not presume that the sole purpose of a law is to advance religion merely because it was supported strongly by organized religions or by adherents of particular faiths. To do so would deprive religious men and women of their right to participate in the political process. Today's religious activism may give us the Balanced Treatment Act, but yesterday's resulted in the abolition of slavery, and tomorrow's may bring relief for famine victims.

Similarly, we will not presume that a law's purpose is to advance religion merely because it "'happens to coincide or harmonize with the tenets of some or all religions,'" or because it benefits religion, even substantially. We have, for example, turned back Establishment Clause challenges to restrictions on abortion funding,  and to Sunday closing laws despite the fact that both "agre[e] with the dictates of [some] Judaeo-Christian religions."  Thus, the fact that creation science coincides with the beliefs of certain religions, a fact upon which the majority relies heavily, does not itself justify invalidation of the Act.

Finally, our cases indicate that even certain kinds of governmental actions undertaken with the specific intention of improving the position of religion do not "advance religion" as that term is used in Lemon. Rather, we have said that in at least two circumstances government must act to advance religion, and that in a third it may do so.

With the foregoing in mind, I now turn to the purposes underlying adoption of the Balanced Treatment Act.

II

At the outset, it is important to note that the Balanced Treatment Act did not fly through the Louisiana Legislature on wings of fundamentalist religious fervor -- which would be unlikely, in any event, since only a small minority of the State's citizens belong to fundamentalist religious denominations.  The Act had its genesis (so to speak) in legislation introduced by Senator Bill Keith in June 1980.

Before summarizing the testimony of Senator Keith and his supporters, I wish to make clear that I by no means intend to endorse its accuracy. But my views (and the views of this Court) about creation science and evolution are (or should be) beside the point. Our task is not to judge the debate about teaching the origins of life, but to ascertain what the members of the Louisiana Legislature believed. The vast majority of them voted to approve a bill which explicitly stated a secular purpose; what is crucial is not their wisdom in believing that purpose would be achieved by the bill, but their sincerity in believing it would be.

Most of the testimony in support of Senator Keith's bill came from the Senator himself and from scientists and educators he presented, many of whom enjoyed academic credentials that may have been regarded as quite impressive by members of the Louisiana Legislature. To a substantial extent, their testimony was devoted to lengthy, and, to the layman, seemingly expert scientific expositions on the origin of life. These scientific lectures touched upon, inter alia, biology, paleontology, genetics, astronomy, astrophysics, probability analysis, and biochemistry. The witnesses repeatedly assured committee members that "hundreds and hundreds" of highly respected, internationally renowned scientists believed in creation science and would support their testimony. .

Senator Keith repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine. At the outset of the first hearing on the legislation, he testified: "We are not going to say today that you should have some kind of religious instructions in our schools. . . . We are not talking about religion today. . . . I am not proposing that we take the Bible in each science class and read the first chapter of Genesis."

We have no way of knowing, of course, how many legislators believed the testimony of Senator Keith and his witnesses. But in the absence of evidence to the contrary,  we have to assume that many of them did. Given that assumption, the Court today plainly errs in holding that the Louisiana Legislature passed the Balanced Treatment Act for exclusively religious purposes.

Even with nothing more than this legislative history to go on, I think it would be extraordinary to invalidate the Balanced Treatment Act for lack of a valid secular purpose. Striking down a law approved by the democratically elected representatives of the people is no minor matter. "The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act...."

Because I believe that the Balanced Treatment Act had a secular purpose, which is all the first component of the Lemon test requires, I would reverse the judgment of the Court of Appeals and remand for further consideration.