Brennan believed in what supporters call “a living constitution”—or what detractors deride as “a plastic constitution.”  “The genius of the Constitution rests not in any static meaning in may have had in a world that is dead and gone,” he wrote in a 1997 essay, “but in the adaptability of its great principles to cope with current problems and present needs.”  He saw the animating spirit of the Constitution as the protection of the dignity of the individual against the power of majoritarian government.  At the Supreme Court, Brennan cheerfully and tirelessly lobbied fellow justices for the extra votes needed to win a victory for free speech, defendant’s rights, or a broader vision of equal rights.  Chief Justice Rehnquist usually disagreed with Brennan on judicial issues, but admired “the personal warmth and friendliness” that he brought to the Court.

Scalia, on the other hand, insists that the Constitution’s meaning was determined by the “original intent” of its drafters and ratifiers—a vision, critics complain, of a “frozen” and limiting document.  He so aggressively promotes his conservative views on issues before the Court that he oftentimes alienates the very justices whose votes might have tipped a case in his favored direction.  Steven Shapiro, national legal director of the ACLU, observed, “I think he is one justice who thinks his influence is not putting together majorities today but influencing history tomorrow.”  In oral arguments, the combative Scalia frequently asked more questions than the other eight justices put together.  One author of a recent book on the Court observed, “On a bench lined with solemn gray figures who often sat as silently as pigeons on a railing, Scalia stood out like a talking parrot.”

Brennan and Scalia, despite their shared Catholicism, saw issues of religion very differently.  Brennan saw the Establishment Clause as erecting a high barrier of separation between the state and the church.  A former clerk of Brennan’s, Federal Appeals Judge Richard Arnold, summarized his old boss’s view:  “In short, religion is too important to be co-opted by the state for political or governmental ends.”  He believed, Arnold said, that “public and ostentatious piety can be the enemy of true religion.”  The mixing of religion and politics troubles Scalia much less.  He worships at “a suburban Virginia church known for its orthodox-mined congregation, one that recently erected a monument to unborn children.” A pastor at a less conservative church he formerly attended listened to him complain that the parish had become “an ecclesiastical playpen.” Speaking in Mississippi in 1995, Scalia urged religious conservatives to jump into the cultural wars and attack “elites” hostile to faith.  “We must pray for the courage to endure the scorn of the sophisticated world,” the justice declared.  Not surprisingly, then, his voting record reflects a justice unbothered by all but the most blatant attempts of government to support a particular religion.

In 1986, a controversy over creationism and evolution in Louisiana that had been brewing for six years finally reached the United States Supreme Court.  Every knowledgeable observer of the Court knew in advance that the Court’s two Catholic justices would line up on opposite sides of the issue, just has they had in so many others since Scalia joined the Court.  The only real questions were which of the two would be with the majority, and whether both would end up writing opinions.  As it turned out, Justice Brennan would write the Court’s opinion in Edwards v Aguillard; Justice Scalia would write the dissent.

The Louisiana case had its origin in 1980, when a Louisiana State senator, Bill Keith, became concerned that the teaching of evolution in the state’s public schools might cause his son to abandon his faith that “God created the world and God created man.”  Because of this fear, he introduced Senate Bill No. 956 into the Louisiana legislature.   Keith’s bill required that public schools balance the teaching of evolution with the theory of “creation ex nihilo,” which he defined to be the theory that “the origin of all things and their processes and relationship were created ex nihilo and fixed by God.” (63-64)

Keith’s efforts in Louisiana caught the attention of Paul Ellwanger, president of a South Carolina-based organization called Citizens for Fairness in Education.  Ellwanger, who had previously drafted a proposed “model balanced treatment act,” sent a copy to Keith. In his accompanying letter, Ellwanger told Keith that he saw “this whole battle as one between God and anti-God forces.” He warned that it “behooves Satan to do all he can to thwart our efforts and confuse the issue at every turn.” The letter contained strategic advice as well.  Ellwanger cautioned Keith to give the clergy a low profile in the legislative debates, so as not to provide opponents with ammunition in a possible challenge to the constitutionality of the law: “It does no good to have ministers out there in the public forum and the adversary will surely pick at this point.”  Far better, he urged, to have clergy “lead their churches in storming Heaven with prayers for help against so tenacious an adversary.”

Ellwanger’s model bill, only slightly altered, passed the Louisiana legislature and became law.  The law required teachers discussing evolution to also discuss “scientific evidences for creation.”  A supporter of the law described creationism as the model that “postulates that all the basic systems of nature, including elements, stars, planets, and life and the major kinds of organisms, including man, were created fully developed by supernatural creative processes during a primeval period of special creation.” Speaker after speaker condemned evolution in committee hearings on the bill.  Senator Keith, for example, warned his fellow legislators, “Our public school children are being molested by secular humanism.”  He called evolution “the cardinal principle of religious humanism, secular humanism, theological liberalism, and atheism.”  

Not surprisingly, many opponents of the Balanced Treatment law argued that “creation science” was not scientific.  Supporters, however, insisted creation-science “is as non-religious as evolution.” They argued that the central tenet of creation-science is that species abruptly appeared in complex form, and that the concept of a creator is “not inherently religious.” Moreover, they contended, the nature of the creator is not central to creation-science. “A fully certified academic biologist,” a court document filed in support of the law noted, had “worked out in some detail” a “strictly secular theory of special creation.” Finally, creation-science proponents pointed to the testimony of expert witnesses, such as that of a scientist who claimed to be “an evolutionist” but nonetheless told legislators that creation-science “can be taught and presented in a textbook without any religious content.” Creation-science draws on information from “such fields as paleontology, morphology, information science, probability, genetics, and classification”—it is scientific, supporters argued. A quotation from an article by Stephen Jay Gould was offered as an example of the sort of evidence that might be presented to students in a creation-science unit: “New species almost always appeared suddenly in the fossil record with no intermediate links to ancestors in older rocks of the same region.”

The law, supporters adamantly claimed, supported “academic freedom.”  The state’s only interest is to give students more information about a controversial issue—what on earth could be wrong with that?  In its jurisdictional statement filed with the Supreme Court, attorneys representing Louisiana quoted—of all people—Clarence Darrow, John Scopes, and Charles Darwin to support its position: “[It is] bigotry for public schools to teach only one theory of origins” (Darrow); “[I]f you limit a teacher to only one side of anything, the whole country will eventually have only one thought” (Scopes); and  “A fair result can be obtained only by fully stating and balancing facts and arguments on both sides of each question” (Darwin).

The state’s brief described evolution as “a theory in crisis.”  It cited numerous scientists who called into question one or more aspects of the theory.  Not stopping with evolution, the brief (quoting various scientists) suggested that biochemical evolution of the first life and the Big Bang had “problems equally as serious as biological evolution.”

On December 3, 1981, after Governor Edwin Edwards signed the Balanced Treatment Act into law, a group of Louisiana teachers and parents filed an action in federal district court challenging the law on constitutional grounds.  The challengers claimed that the law constituted an “establishment of religion” and asked that the law be enjoined from enforcement.  The lawsuit bounced between courts for four years before the challengers were granted summary judgment.  The Fifth Circuit Court of Appeals affirmed, and Louisiana appealed to the United States Supreme Court.  Review was granted, and the case was set for argument on December 10, 1986.

Attorney Wendell R. Bird, representing the state of Louisiana, told interviewers that he would show  “we were entitled to our day in court.” He accused the Fifth Circuit judges, “like the district court judge,” of “plucking their own definitions from thin air of the theory of evolution and the theory of creation”—definitions that should be determined by expert testimony at trial. 

Attorney Jay Topkis, working without pay for the ACLU, represented those challenging the Balanced Treatment Act.  The law’s defenders, he told a television interviewer, argued that the law’s purpose was to  “serve academic freedom and otherwise to advance all good causes including motherhood, the good, the true, and the beautiful.”  In reality, Topkis said, creation science is “a religious concept—end of argument; and we hoped the justices would grab it that way.”

During oral argument, Justice Scalia peppered attorneys with questions about whether this or that form of creation would necessarily be religious.  He asked the state’s attorney, Wendell Bird, whether creation-science might allow for creation by “a giant slug” as well as a more personal God.  Bird agreed that creation-science made no assumptions about the nature of the creator—only that there was one.  When it came time for argument by Topkis, Scalia returned to the issue of whether creation by a creator was an inherently religious concept. The justice asked Topkis whether he “considered Aristotelianism a religion?” Topkis replied, “Of course not.”  “Well, then,” Scalia asserted, “you could believe in a first cause, an unmoved mover, that may be impersonal, and has no obligation of obedience or veneration from men and, in fact, doesn’t care about what’s happening to mankind—and believe in creation.” “Not when creation means by a divine creator,” Topkis ojected.  “That’s the test.”  He added that there could be no doubt, given the history of the statute, that Louisiana meant “divine” creation, not creation by an unmoved mover.

Justice Scalia has a reputation for throwing attorneys off-balance with elaborate hypothetical questions.  True to form, he posed for Topkis a long hypothetical question—for the purpose, presumably, of demonstrating that a law could have a religious motivation and yet be constitutional.  “Let’s assume,” he began, “that there is an ancient history professor…who has been teaching that the Roman Empire did not extend to the southern shore of the Mediterranean in the first century A.D. And let’s assume a group of Protestants who are concerned about that fact, inasmuch as it makes it seem that the Biblical story of the crucifixion has thing a bit wrong.”  Concluding his story, Scalia tells Topkis that the upset students march “to the principal of the school, and say, ‘This history teacher is teaching what is just falsehood.’ And the principal says, ‘Gee, you’re right.’  And he goes and directs the teacher to teach that Rome was on the southern shore of the Mediterranean in the first century A.D.”  The principal’s order was “clearly” religiously motivated, Scalia asserted, but wouldn’t it also, he asked, be constitutional?  Topkis replied that he thought the hypothetical was distinguishable from his case.  In the history class example, he said, the principal’s motivation would not be religious, rather “he would be acting out of the scholar’s interest in truth”—a worthy and a constitutional motivation. Louisiana’s motivation, however, “by every index we can possibly have” is nothing but religious, Topkis argued. 

Topkis contended that his opponent was trying to “play Tweedledum” by giving “creation-science” a non-religious meaning that it clearly didn’t have.  “He wants words to mean what he says they mean,” Topkis complained.  “And that didn’t fool Alice, and I doubt very much it will fool this court.”  Chief Justice Rehnquist interrupted.  “Don’t overestimate us,” he warned.  Spectators in the great chamber broke into laughter. 

The Court announced its decision in Edwards v Aguillard on June 19, 1987.  Writing for the Court, Justice Brennan said the state failed to identify a “clear secular purpose” for the Act, as required by the Constitution.  Brennan concluded that Louisiana’s stated goal of protecting “academic freedom” was a sham.  The real goal, as he saw it, “was to narrow the science curriculum.”  A statement by Senator Keith during the legislative hearings revealed the real intentions of legislators: “My preference would be that neither [creationism nor evolution] is taught.”  Brennan asked how a law could be said to support academic freedom when it gave teachers no “flexibility that they did not already possess.”  He noted that nothing in prior law prohibited a biology teacher who was so inclined from presenting scientific evidence questioning evolution.

Brennan saw the Louisiana legislature as unmistakably siding with creationists.  He noted that the law required that curriculum guides be developed for creation science, but said nothing about curriculum guides for evolution.  Moreover, the law specifically forbade school boards to discriminate against any teacher who “chooses to be a creation-scientist” or to teach creationism, but “fails to protect those who choose to teach evolution.”  These and other provisions made clear, Brennan said, that the purpose of the law is to discredit “evolution by counterbalancing its teaching at every turn with the teaching of creationism.”

Underlying the law, Brennan declared, were the “same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution” that led to the evolution ban declared unconstitutional two decades earlier in Epperson v Arkansas.  It is not within the power of the state to “restructure the science curriculum to conform with a particular religious viewpoint” or to prohibit a theory “deemed antagonistic to a particular dogma….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.”

Justice Scalia, in a typically colorful dissent joined by Chief Justice Rehnquist, accused Brennan and the majority of deciding constitutional issues “on the gallop” and “impugning the motives” of the law’s supporters.  The Court’s conclusion came from “its visceral knowledge regarding what must have been the motivation of the legislators” and essentially ignored much of the testimony presented during seven hearings and several months of study.  Scalia suggested that the Court had little basis for deciding whether creation science “is a collection of educationally valuable scientific data that has been censored from classrooms by an embarrassed scientific establishment” or whether it is “not science at all but thinly veiled religious doctrine.” He noted that five academics signed affidavits swearing creation science “was a strictly scientific concept that can be presented without religious reference.” At the very least, Justice Scalia wrote, the Court acted prematurely in concluding the law was religiously motivated and should have let the state courts investigate the matter further.

As far as the Constitution is concerned, Scalia insisted, all that matters is that legislators sincerely believed that creation science was scientific.  It is not necessary, for constitutional purposes, that their collective assessment was right.  If a legislature full of ignoramuses requires geography teachers to teach that the earth is flat, it is a sorry state of affairs—but not an unconstitutional one. Moreover, the fact that many supporters of the law might also have had religious motivations is of no concern.  Scalia noted that the Court would never “strike down a law providing money to feed the hungry or shelter the homeless” just because legislators might have had religious beliefs that influenced their decision.

Scalia left little doubt that he thought the majority let its own views about creation science and evolution—rather than the beliefs of Louisiana legislators—determine the outcome of the case.  He reminded the majority that Senator Keith “repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine.”  He cited his testimony at the first hearing on the legislation:  “We are not going to say today that you should have some kind of religious instructions in our school….I am not proposing that we take the Bible in each science class and read the first chapter of Genesis.”

It surprised many readers, no doubt, when conservative columnist George Will authored a column calling the Court’s decision in Aguillard “insufficiently severe” with the Louisiana legislature. “Stephen Gould, call your office,” wrote Will. He ridiculed the suggestion that “creation science” is a scientific theory, calling it a “dogma” that “is neither based on, nor vulnerable to, scientific scrutiny of the world.”  Needless to say, Will offered no support for the man who usually is his favorite justice.  He called Scalia’s dissent “dismaying” and compared teaching the creation science in biology to teaching “alchemy in chemistry classes” or “flat-earth doctrines in geography classes.”  Facts might “incovenience” beliefs, Will admitted, but when they do so, the proper response should be to say, “Too bad for the beliefs.”  Western civilization, according to Will, rests on its “eagerness…to face and embrace facts.”

Stephen Jay Gould, perhaps responding to George Will’s call, joined in criticism of Scalia’s dissent.  In an essay entitled Justice Scalia’s Misunderstanding, Gould wrote that “he couldn’t have helped wondering how two justices could have ruled” in favor of Louisiana.  After studying Scalia’s dissent “carefully,” the paleontologist concluded the justice “does not understand the subject matter of evolutionary biology.” In Gould’s opinion, Scalia failed to recognize that creation science “is free of evidence” and “merely restates the Book of Genesis.”  The dissenters just didn’t grasp that “all scientists’ believe “the scientific evidence for evolution is so conclusive that no one would be gullible enough to believe that there is any real scientific evidence to the contrary.” In Gould’s words, “evolution is as well confirmed as anything we know.”  Scalia’s mistake, Gould concluded, lay in equating evolution with “the search for life’s origins,” not—as it correctly signifies—the process by which “life changes after it originates.”  Scalia should have known that science has nothing to say about “questions of ultimate origins.”