While I concur in the conclusions announced by Chief Justice GREEN, and agree, as so ably shown by him, that it is within the power of the Legislature to so prescribe the public school curriculum as to prohibit the teaching of the evolution of man from a lower order of animals life, even though the teaching of some branches of science may be thereby restricted, I am of the opinion that the constitutional objections urged do not apply for yet other reasons, and in another view.
Two theories of organic evolution are well recognized, one the theistic, which not only concedes, but maintains, consistently with the Bible story, that “the Lord God formed man from the dust of the earth, and breathed into his nostrils the breath of life, and man became a living soul.” This is the theory advanced eloquently by learned counsel for Scopes, and held to by numerous outstanding scientists of the world. The other theory is known as the materialistic, which denies that God created man, that He was the First Cause, and seeks in shadowy uncertainties for the origins of life. The act before us, as I view it, prohibits the teaching in public schools of the State of this latter theory, inconsistent not only with the common belief of mankind of every clime and creed and “religious establishment,” even those that reject Christ or Judaism, and look through Buddha or Mohammed to God, but inconsistent also with our Constitution and the fundamental declaration lying back of it, through all of which runs recognition of and appeal to “God,” and a life to come. The Declaration of Independence opens with a reference to “the laws of nature and nature’s God,” and holds this truth “to be self-evident, that all men are created equal, that they are endowed by their Creator,” etc., and concludes “with a firm reliance on the protection of Divine Providence.” The Articles of Confederation and Perpetual Union read—”And whereas, it hath pleased the Great Governor of the world.” And so section 3 of article 1 of the Constitution of this State, which declares that “no preference shall ever be given, by law, to any religious establishment,” opens with the declaration “that all men have a natural and indefeasible right to worship Almighty God,” while section 2 of article 9 declares that “no person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the Civil department of this state.” That the Legislature may prohibit the teaching of the future citizens and office holders of the State of a theory which denies the Divine Creator will hardly be denied.
Now I find it conceded in an exceptionally able brief for Scopes, devoted exclusively to the question of uncertainty, that “the act might be construed as only aimed at materialists.” This is my view of it. As I read it, the act makes no war on evolution, except in so far as the evolution theory conflicts with the recognition of the Divine in creation.
While it is conceded that the language is in some respects ambiguous, analysis of the caption and body of the act as a whole appears to sustain this view. The variance between the caption and the body of the act is significant. The caption refers broadly to “the Evolution Theory” but it is clear that the act itself, as finally framed and passed, was expressly limited and restricted in its body to the prohibition of the teaching—not of any theory of evolution at all, but of any theory only that denies or controverts “the Divine Creation of man.” While the language used is “any theory that denies the story of the Divine Creation of man as taught in the Bible,” the italicized phraseology may be said to be descriptive only of the essential matter. It may be insisted that these words, when given their proper force, serve to narrow the meaning of the act so as to confine its operation to prohibition against the denial of the Divine Creation of man to the story taught in the Bible as interpreted by those literalists who hold to the instantaneous creation view. In reply, it may be said that however plausible may be this construction or application of this language, it must be rejected on the very grounds emphasized by learned counsel, who adopt it and then proceed to predicate there on their argument for the unconstitutionality of the act. The courts may go far to avoid a construction which will destroy the act. This is axiomatic. One may not consistently contend for a construction of language, at all open to construction, which, if applied, will make void the act. Moreover, it would seem that, since “the story as taught in the Bible” of man’s creation by God from the dust of the earth is readily susceptible of the construction given it by those known as liberalists, this language is consistent with the conclusion that what the act aims at and effects is the prohibition of the teaching of any such theory only as denies that man was divinely created according to the Bible story, however this story may be interpreted as to details. So long as the story as told in the Bible is so construed as to recognize the Divine creation of man, these words have no limiting effect upon the central and essential object of the act as hereinbefore suggested—to restrain the inculcation into the minds of pupils of the public schools of any theory that denies the Divine Creation of man, and on the contrary traces his origin, in exclusion of the divine, to a lower order of animal life. It is this materialistic teaching which is denounced, and, so construed, the act may clearly be sustained, negative only as it is, first, of the right to teach in-the public schools as denial of the existence, recognized by our Constitution, of the Creator of all mankind; and second, of the right to teach any theory which involves the support or advocacy of either, or any, religious dogma or view.
The concluding phrase, “and to teach instead that man has descended from a lower order of animals,” is added on the apparent assumption that such teaching involves a denial, which the preceding clause prohibits, of Divine creation. The use of this language, aptly defined by our learned Chief Justice as a species of iteration, for the purpose of emphasis, indicates an intention to set over one against the other, the theory, or “story” of man’s Divine creation, and the antagonistic and materialistic theory, or “story,” of his origin in the animal kingdom, to the exclusion of God. The phraseology is antithetical—a favorite form of strengthening statement. “Measures, not men.” Springing from God, not animals. The two theories of man’s origin are placed in direct opposition; the manifest purpose being to emphasize the essence of the thing prohibited, the teaching of a denial of man’s divine creation.
The following statement of Dr. E. N. Reinke, Professor of Biology in Vanderbilt University, is repeatedly quoted in briefs of counsel for the defense:
“The theory of evolution is altogether essential to the teaching of biology and its kindred sciences. To deny the teacher of biology the use of this most fundamental generalization of his science would make his teaching as chaotic as an attempt to teach astronomy without the law of gravitation or physics without assuming the existence of the ether.”
Conceding that “the theory of evolution is altogether essential to the teaching of biology and its kindred sciences,” it will not be contended by Dr. Reinke, or by learned counsel quoting from him, that the theory of evolution essentially involves the denial of the Divine creation of man, and that, when construed to prohibit such a denial only, the act is objectionable as denying to “the teacher of biology the use of the most fundamental generalization of his science.”
Now, in this view, it is clear that the constitutional direction to cherish education and science is not disregarded. The teaching of all sciences may have full legitimate sway, with the restriction only that the teaching shall not convey a denial of man’s Divine origin—God as his Creator. The theories of Drummond, Winchell, Fiske, Hibbens, Millikan, Kenn, Merriam, Angell, Cannon Barnes, and a multitude of others, whose names are invoked in argument and brief, do not deny the story of the Divine creation of man as taught in the Bible, evolutionists though they be, but construing the Scripture for themselves in the light of their learning, accept it as true and their teaching would not come under the ban of this act.
Much that has been said here bears directly upon the contention that section 3, art. 1, of our Constitution is violated, in that a preference is given by law to those “religious establishments which have as one of their tenets or dogmas the instantaneous creation of man.” As was said by
Chief Justice GREEN, the act gives no preference to any particular religious establishment. The doctrine or tenet of the instantaneous creation of man is not set forth or preferred over other conceptions. It is too well established for argument that “the story of the divine creation of man as taught in the Bible” is accepted—not “denied”—by millions of men and women who do not interpret it as teaching instantaneous creation, who hold with the Psalmist that “a thousand years in thy sight are but as yesterday when it is past,” as but a day. It follows that to forbid the teaching of a denial of the biblical account of Divine creation does not, expressly or by fair implication, involve acceptance or approval of instantaneous creation, held to by some literal-ists. One is not prohibited by this act from teaching, either that “days,” as used in the book of Genesis, means days of 24 hours, the literalist view, or days of “a thousand years” or more, as held by liberalists, so long as the teaching does not exclude God as the author of human life.
Considering the caption and body of this act as a whole, it is seen to be clearly negative only, not affirmative. It requires nothing to be taught. It prohibits merely. And it prohibits, not the teaching of any theory of evolution, but that theory (of evolution) only that denies, takes issues with, positively disaffirms, the creation of man by God (as the Bible teaches), and that, instead of being so created, he is a product of, springs from, a lower order of animals. No authority is recognized or conferred by the laws of this State for teaching in the public schools, on the one hand, of the Bible, or any of its doctrines or dogmas, and this act prohibits the teaching on the other hand of any denial thereof. It is purely an act of neutrality. Ceaseless and irreconcilable controversy exists among our citizens and taxpayers, having equal rights, touching matters of religious faith, and it is within the power of the Legislature to declare that the subject shall be excluded from the tax-supported institutions—that the State shall stand neutral—rendering “unto Caesar the things which be Caesar’s and unto God the things which be God’s,” and insuring the completeness of separation of Church and State.
In the light of this interpretation, is the act void for uncertainty? I think not. If the act were affirmative in its requirements, calling for the teaching of some theory, the objection would be more plausible. A clear chart is more necessary when one must move, over matter or in mind, than when one is required merely not to act or teach. Any reasonable intelligence should be able to understand and observe the plain prohibition against instilling into the minds of the pupil a denial that he is a creation of God, but rather a product of the beast of the field; against teaching—and the term is here employed in the sense of seeking to convince—the pupil affirmatively that his origin is not Divine, but material, through the animal. He who runs may read. He need do no guessing as to what particular conception or view of the Bible account he shall teach. The act does not require that he choose between the fundamentalist and the modernist, the literalist and the liberalist. Our laws approve no teaching of the Bible at all in the public schools, but require only that no theory shall be taught which denies that God is the Creator of man—that his origins not thus to be traced.
In brief, as already indicated, I concur with the majority in the conclusion (1) that this case must be reversed for the error of the judge in fixing the fine, (2) that a nolle prosequi should be entered, and (3) that the act is constitutional as within the powers of the Legislature as the employer of its teachers. However, I go further and find the act constitutional for additional reasons rested upon the view that the act fairly construed is limited to the prohibition of the teaching of any theory of evolution only which denies the Divine creation of man, without regard to details of religious belief, of differing interpretations of the story as taught in the Bible. In this view the constitutionality of the act is sustained, but the way is left open for such teaching of the pertinent sciences as is approved by the progressive God recognizing leaders of thought and life.
World History
