Deposition of Reverend William S. McLean

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

REV. BILL McLEAN, et al., )
)
)
PLAINTIFFS, )
)
)
VS. ) LR-C-81-322
)
)
STATE OF ARKANSAS, et al., )
ARKANSAS BOARD OF EDUCATION, )
)
)
DEFENDANTS. )
*************************************)

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THE DEPOSITION OF WILLIAM S. McLEAN,
TAKEN IN BEHALF OF THE DEFENDANTS.

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APPEARANCES:

CEARLY, GITCHEL, MITCHELL &
BRYANT, PA., 1014 W. 3rd Street,
P. O. Box 1510, Little Rock,
Arkansas, 72203, by MS. JOAN
VEHIK.

and

KAPLAN, HOLLINGSWORTH, BREWER &
BILHEIMER, PA., Tower Building
Suite 955, Little Rock, Arkansas,

and

2

SKADDEN, ARPS, SLATE, MEAGHER,
& FLOM, 919 Third Avenue, New
York, 10022, by MR. GARY E.
CRAWFORD,

ATTORNEYS FOR THE PLAINTIFFS.

***********

MR. DAVID WILLIAMS, Deputy Attorney
General, and MR. RICK CAMPBELL,
Assistant Attorney General, Office
of the Attorney General, Justice
Building, Little Rock, Arkansas,
Attorneys for the Defendants.

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The deposition of the witness was taken before me,
Terry G. Jackson, a Notary Public within and for Pulaski
County, State of Arkansas, duly commissioned and acting,
on Friday, October 2, 1981, beginning at the hour of 2:10
o'clock, p.m., at the offices of Cearly, Gitchel, Mitchell &
Bryant, 1014 W. 3rd Street, Little Rock, Arkansas, in
accordance with the Federal Rules of Civil Procedure,
pursuant to notice and agreement of counsel, taken at
instance of the defendants in the above styled cause, pending
in the United States District Court, Eastern District of
Arkansas, Western Division.

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THEREUPON, the following proceedings were had, to-wit:

STIPULATION

It is stipulated and agreed, by and between counsel
for the respective parties, that the deposition of the
witness may be taken at this time and place, by agreement
of counsel; that all formalities as to the taking of said
deposition are waived including presentation, reading and
subscription by the witness, notice of filing, filing, etc.;
that all objections as to competency, relevancy and materi-
ality are expressly reserved and may be raised if and when
said deposition, or any part thereof, is offered at the trial
of the cause.

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THEREUPON,

WILLIAM S. McLEAN,

having first been duly sworn by the undersigned Notary
Public to tell the truth, the whole truth and nothing but
the truth, testified as follows, to-wit:

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DIRECT EXAMINATION

BY MR. WILLIAMS:

Q Please state your name.

A William S. McLean.

Q And it's Rev. McLean, is that correct?

A Right.

Q What church are you affiliated with?

A I am affiliated with the United Presbyterian Church
in the U.S.A., and the Presbyterian Church in the United
States. By virtue of the Union Presbytery, we now are
affiliated because of overlapping areas with two
denominations.

Q Are you currently a pastor of a church?

A No. I am currently the Presbytery Executive for the
Presbytery of Arkansas.

Q Would you explain to me what the dutes of that include?

A I guess if we were Episcopalian they would call me a
bishop, it is really the chief executive, administrative
pastorial officer for a grouping of one hundred and
four (104) congregations in our judicatory unit that
we call the Presbytery.

Q Does that cover the entire geographic state of Arkansas?

A Only the northern two-thirds.

Q First of all, let's go into your educational background.
Just briefly, could you give me, first of all, where

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you attended high school.

A Lenoir High School in Lenoir, North Carolina. One year
at Darlington Preparatoy School in Rome, Georgia. Four
years at Davidson College, North Carolina. Four years
at Union Theological Seminary in Richmond, Virginia.

Q What degree do you have from Davidson, first of all?

A I have a Bachelor of Science in Business Administration.
I have a Bachelor of Theology and a Master of Theology
from Union Seminary.

Q Did you have any particular concentration in your
Bachelor of Science degree?

A I was in college not knowing what I wanted to do, and I
majored really in Business Administration, took a minor
in history, and did some economics.

Q Oh, I'm sorry. I thought you said -- you have a
Bachelor of Science in Business Administration?

A Right.

Q So, you don't have a science degree?

A No.

Q Have you taken -- did you take any science courses,
yourself?

A I took biology in high school and physics in college.

Q Is that the extent of it?

A That's the limit.

Q All right. Have you been with the Presbyterian Church

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throughout your ministry?

A Yes.

Q How long have you been in Arkansas?

A I graduated from seminary in 1952 and went to McGee,
Arkansas in '52, and I have been in Arkansas ever since.

Q Could you please tell me the churches after McGee?

A Four (4) years at McGee, eight (8) years as the pastor
of the First Presbyterian Church, Texarkana, Arkansas.
Ten (10) years as pastor of Pulaski Heights here in
Little Rock. And since October, '74, I have been the
Presbytery Executive.

Q Could you give me an idea of how you came to be involved
in this case as a Plaintiff?

A I was on a trip to South Carolina the week in which the
Act was effected. After coming back, I received a
phone call, I believe, from Bishop Hicks' secretary
telling me that some were interested in becoming
Plaintiffs, and I said in answer to the inquiry that, yes,
I would be very much interested in joining in.

Q All right. When is the first time that you were aware
that what is now Act 590 had been proposed in the
Arkansas State Legislature?

A I really do not recall. I was aware that it was in the
mill, but in terms of a time line, I don't have that.

Q Were you aware of it as having been proposed prior to it's

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passage?

A Yes.

Q Had you met with Bishop Hicks or anyone else about the
matter prior to it's passage?

A No.

Q So, you had an awareness from reading the newspaper?

A Right.

Q Did you try to make any personal action regarding the
passage of the bill?

A No, because I was out of town during the week of the
hearing.

Q Rev. McLean, I would like to ask you if you could give
me the names of some widely known theologians whose
views would be most compatible with your's, or similar
to your own?

A I have been helped and guided by the writings of Carl
Barth. Reinhold Neibhur has been a tremendous help.
And I would say as a Presbyterian a lot of us key back
on John Calvin as one who had some pretty good thoughts.

Q Could you characterize your own theological viewpoint
for us?

A In reference to what?

Q Just a succinct statement of your own theological view-
point.

A Well, I would say that I am consistent with the reformed

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tradition, which starts out with the absolute sovereignty
of God, a purpose for man, the fact of the need for
redemption, redemption becoming effective in the
incarnation applied to us by grace but received by
faith, and this faith is to permeate all that we do
as a part of the church and the total life.

Q When you speak of the reformed tradition, do you connect
that to any particular date or event when the reform
tradition began in your mind?

A No. In my life?

Q No. In your mind.

A Actually, when I say the reformed tradition, of course,
at the time of the Protestant reformation under the
leadership of Martin Luther and John Calvin. And I
don't see that as the starting point. I see that as
a reforming process where they took the best of the past
and tried to screen out some of the abuses of the church,
and put together a different viewpoint in terms of the
meaning of the church, and the life of those in the
church.

Q At Union Theological Seminary, you said that you have your
Masters from there?

A Yes.

Q I'm not that familiar with seminaries. In receiving
your Bachelor degree, would there be some fairly well

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standard program which you would have to complete in
order to receive a Bachelors?

A At that time, they called it the Bachelor of Theology.
The Master of Divinity now has a three (3) year program.
I stayed on and did one year and got my Masters in
Theology there.

Q The Bachelor program, would that have been a fairly
standarized program which you would have to follow?

A Correct.

Q The Masters, the extra year that you did, would that have
also been standarized, or did you have some discretion
in the courses you chose?

A I chose my area of study and did work under one particular
professor.

Q What area of study would that be?

A Doctrine of Salvation and the Pauline Epistles.

Q Did you have to write a Master's thesis?

A Yes.

Q What was the subject of your thesis?

A Gosh, that was so long. I think it was called Salvation
as Deliverance.

Q As succinctly as possible, could you describe what you
consider salvation to include, to mean?

A To me, salvation is the assurance that in the grace of
God we are accepted as one of his children, despite our

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own human failures. To me as a Christian, it involves
believing that there was a mediation of Christ. To me
It's not something that awaits future rewards in some
future life after death, but it is the beginning of
eternal life now, in terms of a new dimension because
of what we feel and know and experience as Christians.
It means that though we all fear death, we don't have
the same fears that others might, because it's a
transition but the same sort of existence with God.

Q Is your view of salvation, does it include a kind of
life after death?

A Yes.

Q Could the term fundamentalist, in your own mind, be
properly applied to you?

A You know, everything comes from a framework of reference.
In terms of the fundamentals of the Christian faith,
I could call myself a fundamentalist. In terms of the
use that has been applied to it in recent years, I
perhaps would not qualify.

Q Well, could you enlarge upon what you see the use to have
been in recent years?

A I guess really the real water shed is the interpretation
of scripture. I think that more than any other issue
or area has been the dividing line.

Q Could you give me an idea by what bench mark you would

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look at the interpretation of someone's view on that
and decide on the modern day or the current day usage
of the word fundamentalist that would apply to them?

A Let me say, I don't want to stereotype everyone that
might be accused of being a fundamentalist, but speaking
broadly, I would think that a fundamentalist would
believe that if any portion of the written word were
proven to be untruthful in any sense of the word, why
then, the whole framework of faith would perhaps start
to crumble.

Q Does this relate to what I've heard termed the Doctrine
of Biblical Inerrancy?

A Yes.

Q So, that would be a standard in your own mind that you
would apply to --

A Yes.

Q Applying this to yourself, how would you come out. If
the standards applied to you, what is your own opinion
of that doctrine or that belief?

A Our standards say that the Bible is the word of God and
the rule for the practice of faith in life, and it does
not go into inerrancy at all. And that is very satis-
factory to me.

Q So, do you have a position on inerrancy yourself?

A Oh, yes.

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Q What is your position on that?

A Well, I think that in terms of the way in which the Bible
has evolved, it has human authorship, there are errors,
but no errors that in any way threaten or even gnaw
away at my own faith in terms of the major truths about
God and man and relationships of life, which I consider
to be fundamental.

Q What is your own view as to the inspiration of the Bible?

A I think that the Lord, working through the presence of
the Holy Spirit, inspired folk of old to make record of
those things which seemed to be important, first of all,
in the life Israel as they achieved a sense as a people
of God. I think inspiration, of course, caused those
folks that were involved in the life and ministry of
Jesus to make records in terms of their experience and
writing letters to share their experience. And that the
Spirit was at work making these things significant.

Q So, in terms of the inspiration, could you be more
specific as to whether you feel that the general subject
areas covered, words written, are exactly what was
inspired?

A Run that by again.

Q Okay. What I'm really asking you, simply, could you be a
bit more specific. You've talked in general terms that
You believe that the scriptures are inspired by the Holy

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Spirit, as you put it, in writing. In writing, first of
all, to the problems of the nation of Israel. And then
you enlarged upon that a little bit. But I want to know
more specifically your own position as to the degree of
inspiration and the degree to which God controlled or
didn't control the writing of the scriptures.

A Well, I'm trying to think of how I can enlarge upon what
I've already said. For instance, as Paul wrote the letters,
I don't think Paul was put into a trance and all of the
sudden became a mechanical first century robot for the
Holy Spirit to write those words. I think the Spirit
was working in his life in a way that he didn't realize,
like I hope it works in our lives today. And I think
what came out in terms of sharing his convictions, the
church looked upon it and said this was Spirit inspired.
I think the historians of Israel wanted to keep these
important accounts alive, and I think the hand of God
was working in it. But to say that the hand of God made
every jot and tittle absolutely correct is not in my
theory of inspiration.

Q So, would it be fair to say that you consider the fact
that these individuals wrote -- the fact that they put
down, pencil to paper if you will, what they did, it
was generally inspired, but as to what was specifically
wrote, they wrote from their own personal experience?

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A Their own personal experience cognizant of a working of
the Lord in their life. It was not someone sitting down
to write a thesis. I think they felt a peculiar, unique
calling.

Q I'm really not trying to be difficult but I'm really
trying to understand just what your own personal belief
is. When you use the word divinely inspired, I mean,
that conjures up images of everything from the robot,
which you now have excluded, to just the fact that
unconsciously these people felt a need to write something
maybe. And there is a wide range in there. So, if you
can be more specific, I would like to ask you to be.
Could you maybe give me an example of how -- of what --
based upon your own knowledge and personal belief,
believe one of these books might have been written?

A Well, the example of Matthew, the experience he had in
terms of being related to the Lord, felt that these facts
and -- how we see the Spirit working in his life. I
don't know to what extent he was aware as to what he
was actually doing. He felt compelled to put this down
as best he knew it. And to me, the Doctrine of
Inspiration is far more involved than just what was
happening at the moment. It involves the church and the
church's judgment on the validity of it and the church's
acceptance and what it meant in the life of the church.

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Q But there you're talking about the councils which accepted
these. You consider that to be a part of the Doctrine
of Inspiration, as you view it?

A Yes.

Q For example, when you speak of Matthew writing those
things down, or perhaps when Paul wrote some of his
letters, could you conceive, could it be possible for
someone of present day to be inspired in the same sense
with divine inspiration to write something?

A Not in the same sense, no.

Q How would those be different?

A Once again, I think it's tied in by the doctrine of the
church. When the church said the canon is closed, this is
it -- I think a lot of inspired writings have occurred
since then, but I think the Holy Spirit worked with the
church council to say this is the central corpus in terms
of holy writ.

Q What is your view of the Genesis account of creation?

A I feel that the Genesis account of creation is a
theological affirmation that God created all that is
and that man was the very highest creation for a purpose
which comes out in the phrase, "In the image of God".
I think the story is a theological affirmation.

Q Okay. To me that is kind of vague. It's an affirmation
of what?

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A Of theological truth.

Q All right.

A I think I've just finished, you know, relating the
truths that I feel it affirms.

Q Let me ask you some more specifics then. Do you believe
that God created the heavens and the earth?

A You'll have to say a little bit more about that.

Q Well, taking that statement first of all. Do you believe
that God created the heaves and the earth?

A I would have to put it in a little different framework.

Q All right.

A I would have to say that God is sovereign and everything
that has come about has been under his sovereignty.

Q So, you would not use the term created yourself in
viewing the heavens and the earth and the world as we
know it coming into being?

A Yes, I would use it, but I would have to footnote it.

Q By what process do you think god used in trying to
bring the world as we know it into being?

A Well, frankly, I don't know. I think that everything
that has evolved in terms of bringing the world to this
point is the work of God.

Q Would you -- do you think that God in bringing man about
as we know him -- I guess the first question, obviously,
do you believe that God was responsible for bringing man

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about as we know him today?

A Oh, yes.

Q The second question then is, what method do you think
God used?

A I do not know.

Q Do you have a belief?

A Let me say that my belief is, I am willing to leave open
to study, perceptive to the best findings of people in
the disciplines of science and anthropology and all,
and look at them critically and say we are always in the
process of finding truth, whatever that truth ultimately
is; God is sovereign and God is in control and behind the
process.

Q So, you would then, as I understand your last statement,
consider God to have brought about man as we know him
through what you know was the scientific method?

A Let me say that I do not know that I know absolutely
the scientific method whereby that came about.

Q I'm not asking you to tell me with one hundred percent
sureness that you know that it was through this method.
I'm just asking for your own personal belief. That's
all I really want to know.

A All right. State that again.

Q Okay. From your earlier statement, would it be fair to
say that God brought man about as we know him through

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what you would consider to be a scientific process,
including evolution?

A Well, we have put the term scientific process on to the
exploration that has taken place to try to uncover
certain facts. I'm not sure that that would be my
affirmation. I'm just saying, however he came about
in terms of the creation of man that God is the one who
is ultimately in control and responsible, and has created
all those things that have brought this about.

Q Do you have a personal belief as to the manner in which
God created man?

A I have a pretty open door there. Let me say that I do not
believe that it was a seven (7) day process. That is
not at all consistent with my own framework of Biblical
interpretation.

Q That is not consistent with your framework?

A No.

Q How is that inconsistent with your framework of Biblical
interpretation.

A Because I do not believe that Genesis I and II contain
either science or actual history. I think it contains a
theological affirmation that God did it.

Q All right.

A And let me go ahead and say, you know, if it took four
million years, God still did it, and that doesn't bother

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me one bit. I know of the final product, and I think the
final product we saw primarily in the early part of the
Old Testament.

Q Maybe I don't understand what you're saying. You say
that your belief is that a seven day period was not
used, is inconsistent with your own Biblical framework.

A No. I do not believe in the literal seven day period.
Is that clear?

Q I understand that. Your statement, at least implied,
or I inferred from it, that somehow you believe that the
seven day period from a Biblical text was what was in
fact used.

A I don't think I implied that.

Q Okay. If you didn't mean to, that's fine. I just want
to clarify that. Now, I was asking you the question
as to what means you believe God brought about -- used,
excuse me, to bring about man. And I asked you a
question which we digressed from and I would like to
return to that question. By what means did God bring
about man?

A Let me say that God is the one who is in control and
always has been. I think that all of the laws and
principles that govern our lives in the universe are
His, or maybe Her's. And I really don't struggle with
how that came about. I am satisfied with the fact that

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man evolved to the point that we now know and experience.

Q I understand your answer. I understand that you say that
it's not a great struggle for you. But with all respect,
I still don't think I've gotten an answer to my question.
What means do you believe -- if you believe any, that
God used to bring about man as we know him?

A I feel that it is not at all inconsistent with my
theology and Biblical interpretations to feel that there
was a long period of evolution of some sort. I do not
call myself a Darwinian or anything else. I just feel
that science has put before us too many basic research
facts in terms of the age of the world, and the development
of the whole universe. And I feel that there was some
evolving -- I even hesitate to use the word evolution,
because before you know it you're pegged. But I think
there was some evolving process whereby all of the
sudden man came into awareness of this unique relationship
with God. And how long it took, how it happened, the
process, you know, I have no idea at all.

MR. CRAWFORD:

Let me interrupt just a second. Would you like a
drink of water or something?

MR. WILLIAMS:

Let's go off the record.

(Off Record)

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BY MR. WILLIAMS:

Q So, it would be your belief that some evolving was
utilized by God to bring man to where he is today?

A Yes. Consistent with the laws of his universe.

Q And that evolving that you speak of, in your own mind.
might it include some change or, I guess the word
man evolving from lower forms of life? From other
forms of animals?

A It could.

Q That would not be inconsistent with your religious
beliefs?

A No, it would not.

Q In the general framework of evolution, that would not be
inconsistent with your religious beliefs, as I understand
what you're saying.

A Right.

Q Do you have a belief as to when creation occurred?
As to when man as we know him came into existence?

A No idea at all.

Q Do you have a belief as to who wrote Genesis?

A I think it was several historians that wrote certain
things in terms of the early experiences of mankind
coming into a consciousness of God, and that these
different writings were put together by some later
scribe or author into the collection we have now.

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I think there is a good chance that there was a many as
maybe four (4) authors.

Q I think you have earlier spoke of Carl Barth. Could you
give me your own opinion of what you think of the
writings of Carl Barth?

A Well, I think Barth was instrumental in turning around
some trends that were getting the church in his era
and on the European scene a bit removed from the
centrality of the Bible as a central witness for
Christian faith and life. And I think Carl Barth's
major thesis was the word of God. Jesus Christ being
the central word of God, the word made flesh, the
written word being the other witness, and the third
portion of that, is that in a sense, though it's not
on the same level with creation that under the Biblical
authorship he says there is a unique sense in which
the word is reenacted in the worship experience of the
church. Not just what the preacher says, but the way
in which the Bible is interpretated and received. I
think that's the thing about Carl Barth that was --

Q Significant for you?

A Yes.

Q Did you say that Barth took some of the central focus
away from the scriptures? Is that what you said?

A No. He put it in.

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Q Oh, all right.

A He was the one that pulled the church back toward the
Bible, as the church, at least in certain parts of
Germany, was drifting away from seeing the importance
of scriptures in the heart and life of the church.

Q What had they been drifting to, if they had been drifting
to anything before Barth began his writings and had the
effect that it did?

A Oh, I wouldn't say they'd been drifting into deep heresy.
I think it was more a proneness on the part of the
church to begin with the existential experience of man
and work from there to God. Barth did not deny any
of their findings. He said, "You're at the wrong starting
point".

Q Could you also tell me what you think of the writings of
Reinhold Neibhur? The impact that he's had on you?

A Yes. I think Reinhold Neibhur, in my own view of his
writings and life, did a beautiful job of maintaining
scriptural, theological integrity and dragging the
church out of an isolated cubbyhole and saying, "Look
here, you don't live in a monastery. You live in a
world. And the church has a real responsibility to be a
part of and witness to the world".

Q So, I take it that he had -- his writings had a signifi-
cant impact upon your own theological beliefs?

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A Very much.

Q What about Emil Brunner?

A I'm not real conversant on Brunner. I think that he
certainly was a very significant theologian. I have read
some of his books, Man In Revolt. I'm trying to think
of the other.

Q Did that have any impact upon your own theological belief?

A Yes, I'm sure. But let me say, I haven't read Brunner
since seminary, and I don't want to jump back in 1949
and describe my experiences them.

Q Okay. What of Paul Tillich?

A I think Paul Tillich, though he would not be one that I
would say I can line my theology with, I think he has
made a good contribution in terms of wrestling with the
problems of existence. What does it mean to be a man?
That sort of thing. Of course, he's no longer with us,
but he was one of the existential theologians, which I
can follow a long way, but not all the way.

Q How far can you follow? Where do you have to depart?

A Tillich got a little hazy in terms of some of the things
that I feel are basic. I think he tried to make too
little of the resurrection and this sort of thing.

Q What is your opinion of the theological writings of
Graff? Are you familiar with him?

A I'm going to have to pass on that one.

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Q Okay. What about Wellhousen?

A Yes. I think Wellhousen made a big contribution in
terms of understanding the real dynamics of the scriptures,
especially the Old testament. It was his hypothesis
that caused people to see that these books that had
been described real simplistically, the one author,
you know, where it's totally different, is in similar
style in the word used for God, is trying to put, you
know, the writings of the editor of the Gazette over
against the poetry of Shakespeare. They realized that
all of the sudden, you know, these things don't match.
And you've got to realize that they're telling the same
story. But to say that the same person wrote them is
absolute foolishness.

Q Would his writings be consistent with your own
theological beliefs?

A Let me say that I'm not sure that I've read all that
much of Wellhousen. I have read about him, and I think
most of his works were in German.

Q Were they translated very much, do you know, to English?

A In the Old Testament courses at seminary, we may have had
books that expounded his theories.

Q All right. To the extent that you had those books and
understood them, would the exposition of his theories
be consistent with your own theological beliefs?

26

A You know, not having read all of Wellhousen, what I was
taught in terms of a key to understanding the Old
Testament, yes, it made sense. I don't know all he's
wrote. He might have written a lot of things which I
have no idea about and would completely disagree with.

Q That's fair. I understand that. What of Harry Scribner
Ames?

A I do not know him.

Q Excuse me. Edward Scribner Ames.

A No.

Q William Newton Clark?

A I guess I've been some place.

Q What about George A. Cole?

A No.

Q Harry Emerson Faustic?

A Yes. Most people have heard of Faustic.

Q All right. What is your opinion of his writings?

A Actually, his writings are primarily, you know, the
publishing of his sermons. I feel he is a man of a great
spirit. I'm not sure that I would agree with all of his
theology, but I can't even document that.

Q Have you done much reading of his sermons or any other
writings?

A I guess I've read two or three of his books, and then he
has a devotional book. I forget the name of it. But

27

that's been very meaningful to me.

Q Do you use the devotional book very often?

A I haven't in years, no. But I used to.

Q What of Schailer Matthews?

A I'll pass on that.

Q You're not aware of anyone by that name? A theological
writer?

A I may have heard a few comments.

Q Okay. Walter Rauschenbuseh?

A Yes. I know a little bit about Rauschenbuseh.

Q What is your opinion of his writings?

A I feel that he made a very significant contribution.
Some of his theological principles, I do not think,
would be consent with mine. But I think that he wrote
at a time in which people needed to be reminded once
again of the importance of the individual. The social
implications of the gospel. So, though I would not say
that our theologies align perfectly, I'm sure he wouldn't
mind if I said that. It wouldn't threaten him at all.
I feel he made a good contribution in terms of trying
to awaken the conscience of the church.

Q Your theologies would not align perfectly. Would they
align somewhat less than perfectly?

A I think the point at which they would align pretty close,
would be his concern for human beings. The feeling that

28

the church was losing a concern for human beings. He
saw in the ministry of Christ an absolute concern for
individuals, especially those that have sufferings and
hurts. I don't know even how to describe his theological
stance. I've been told that at that time he was considered
liberal. I don't even know what that means.

Q What of Earnest Troeltsch?

A Oh, I have read something of him in seminary, but I don't
remember enough about it to even comment on it.

Q Schielmarker?

A He was one of the ones that was really concerned with
the human situation to such an extent that people felt
that he was forgetting and he was more keying in on
human existence than in devine reality. And I guess he
was one of the ones that Carl Barth sort of reacted to.
Not that Carl Barth, once again, denied the findings of
Schielmarker. He would say that we've got to make sure
that our findings are rooted in certain convictions
about a transcending God.

Q Would his theology then tend to be more consistent or
inconsistent with your own?

A Once again, I did not read Schielmarker to analyze his
theology. I read it to open up my own sensitivity to
human beings.

Q So, can you make a judgment as to whether it's consistent

29

or inconsistent?

A Consistent in terms of the care and the love of God for
individuals. What his theology of the trinity or
resurrection or eternal life, I have no idea.

Q What about Bultman?

A Rudolph Bultman, yes, I've read some of his works.

Q Could you characterize it for me?

A Of course, everyone is a theologian in a sense. Even
you are. Sometimes we're bad and sometimes we're good.
But Bultman, I think, would be looked at more as a
New Testament scholar than a theologian. I find his
writings insightful. I don't agree with all he says.

Q But do you agree with some of what he says?

A Bultman tried to get the church to take an honest look
at the New Testament, and I think he made his contribution
there. He went far to far in terms of my own convictions
in terms of his demythologizing of the New Testament.

Q What was that term again?

A Demythologizing.

Q Okay. Not demon.

A Right.

Q Could you describe what demythologizing of the New
Testament is?

A Oh, basically he said, and here is where I can't quite
get into him, that there are certain segments of the New

30

Testament that are a myth. Now, please understand,
Americans usually go up into orbit when you hear myth.
Myth doesn't mean a lie or something. Myth is -- a
better word would be parable. But sometimes a myth
is a vehicle for containing more truth than a literal
account. so, Bultman's approach for those things that
caused him too much difficulty were in his vocabulary
they were myths. And you demythologized and got the
truth from the myth, and you separated that in terms of
myth from the historical fact of the incarnation, and
there you could have a consistent New Testament approach.

Q Would he attach less weight to the myths than to the
historical facts?

A Oh, I think he would put weight on both.

Q Equal balanced treatment, if you will?

A Well, example, one myth very evident is when Christ
told the parable of the prodigal son. You know, that's
myth. And it's as important vehicle of truth as historical
fact about the life of Christ.

Q I understand that that's a parable. I thought I under-
stood you to say that some of the things which were
recorded, for example, some of the things that Christ
or the Apostles might have done were in fact myths.

A I think Bultman would say, and I don't know for sure
that this is one, but this is just an example, the thing

31

of walking on the water, was a myth. Not that it was a
lie in terms of how we view it, but this was the early
church's way of saying, here is somebody that is super,
period. Bultman was saying to people who were dropping
away, "You don't have to believe that's literally true
in order to have faith." Here is a New Testament church
saying, here is one so great that he could hold out his
hand and still the storm and walk across the water.

Q Do you have a belief yourself as to whether those things
are historically accurate?

A You know, that's the type thing I agonized over in
seminary. It doesn't bother me now. I can accept them
as truth. If somebody is searching for truth and says
this is a bunch of baloney and I cannot be a Christian,
I believe I can say, well, here is a route where you can
be and we can sit in the same boat. I don't put myself
over against.

Q I understand that, but do you have a personal belief
as whether it's true or not? Not what you would tell
one of your parishioners, if you will, as to whether they
had to believe it, but your own personal belief.

A My own belief is, that with God, nothing is impossible.
And I don't go around applying that to all these various
little things. I can accept it as an account of the
power of God, and it doesn't even really bother me.

32

Q So, what I understand you to be saying is you don't
believe that's necessarily literally true.

A I think it very well could be literally true. I don't
want to be put in that box, because if I'm talking with
a college student and I said this is literally true,
then all of the sudden I've fenced him out.

Q Right.

A I'm saying that I can ride both horses.

Q It can be literally true and it cannot, and it doesn't
really matter to you?

A Right.

Q Could your own theology in your mind be fairly character-
ized as neoorthodox?

A Yes. That's a pretty broad umbrella.

Q Well, I want to give you an opportunity to -- if it's
to contrast yourself to a neoorthodox, if there are
differences.

A Once again, when you say that, neoorthodoxy covers
Brunner and Barth who had a lot of debate about the
nature of the word of God. And it includes Tillich
and -- maybe Tillich, and the Neibhur brothers, Reinhold
and Richard Neibhur. You have such a broad umbrella.
Neoorthodoxy is basically a term that the church uses
to say that there was a stern orthodoxy back in -- a
few centuries ago that was really winding, and the church

33

broke away and tried to get away from any sort of
legalism or binding theological affirmation, and neo-
orthodoxy means that we're trying to get back the
certain fundamental things in terms of the word of God,
the meaning of life. And to say that I am neoorthodox --
that's the ship I'm in, but by golly, there are a lot
of the members in the crew that are very different.
But neoorthodoxy is generally the church going back in
the direction of trying to honor the fact of a
transcendent God, and the importance of the Bible, and
the call of the church to be a reall witness. To that
extent, I am neoorthodox.

Q Would you consider your theology to be liberal or
modernist?

A I consider my theology to be conservative.

Q Would you consider yourself to be an Evangelical?

A Very much so.

Q A conservative Evangelical?

A Now once again, we're using terms that we've got to be
real careful about.

Q Well -- answer my question first, and then I'll give you
a chance to define it. Do you consider yourself to be a
conservative Evangelical?

A I would ask what you mean by that before I answer.

Q Well, I'm going to let you define the term for me.

34

A That's what I wanted to do. I am conservative in that
I really feel that my theology is in conformity with
the reformed Presbyterian tradition, and it is in
conformity with the revealed truths of God and man that
we see in scripture. And to me conservatism is accepting
that. I have some friends that would call me a liberal.
But I deny that. I think that I am a conservative
theologian. A liberal is one that says the resurrection
didn't occur. It was in the minds of the church. That's
a liberal.

Evangelical is a term that I sour of resist, having
been jerked away by certain groups. Evangelical comes
basically from a word that means the gospel. And our
desire to share the gospel. As such, I am a conservative
Evangelical. But I am not with those groups that call
themselves conservative Evangelicals, and thereby try
to cut me out.

Q Have you had a chance to read Act 590?

A Yes.

Q Would that be consistent with your own religious beliefs?

MR. CRAWFORD:

What part of Act 590?

MR. WILLIAMS:

Act 590 itself.

35

MR. CRAWFORD:

I don't understand the question. The existence
of Act 590?

A Would you mind me looking at it.

MR. WILLIAMS:

Certainly.

(Counsel hands document to witness)

A Okay. Now, what about Act 590.

BY MR. WILLIAMS:

Q Well, the call within Act 590 that evolution science
and creation science be given balanced treatment. Is
that consistent with your own theological belief?

A I don't know.

Q Could you tell me how it's inconsistent?

A Well, my theology is not just the church words I use
about trinity and eternal life, grace, justification.
My theology concerns the whole of my being and all that
I am. I think that's the only valid theology. And
I guess I have three major concerns that I can say come
within the spectrum of my theology that deals with human
relations and dignity of people. And this morning, you
don't mind, I wrote it out, because I thought brevity
and accuracy might be of help.

Q All right.

A I do not feel that a state legislative body should be

36

engaged in the passing of legislation which dictates
the content of public school curriculum. To me that's
a theological affirmation in terms of my -- Two,
it's a breach of academic freedom to instruct a teacher
to give balanced treatment to a particular theory which
has not been a part of his or her academic training, and
in which he or she believes to be untrue. Three, I
believe that creation science is rooted in a particular
approach to Biblical interpretation and theological
perspective. It would be impossible to teach in a
classroom setting without becoming involved in religious
issues and viewpoints. Because of this, I feel that
Act 590 would violate the religious establishment clause
of the First Amendment.

Q Could I see that?

(Witness hands document to counsel)

MR. WILLIAMS:

I would like to mark this as McLean Exhibit #1,
and make this an exhibit to your deposition.

(Said document was so marked as
McLean's Exhibit #1, and is
appended hereto and appears on
page 94 .)

BY MR. WILLIAMS:

Q You said that you wrote this out this morning?

A Yes.

Q Would this be, in your mind, a fair summary of your

37

concerns over Act 590?

A Yes.

Q Could you tell me, based upon your theology, why you feel
a state legislative body should not be engaged in the
passing of legislation which dictates the content of
public school curriculum?

A Well, as I said before I read that, my theology covers
the whole sphere of relationships, ethical relationships,
and I don't know that I even want to, in the long run,
say that that is a theological statement. I'm saying
that all I am comes under the umbrella of my theological
orientation. Thus, as a theologian, I think that is
just a breach of the assigned duties of the state
legislature.

Q I'm interested in your statement that your own theology
is all that you are. How far would you go with that?
For example, would you consider your beliefs on certain --
a preference for one office seeker, a politician, over
another. Would that be part of your own theology, giving
your own definition?

A Not technically. I think my theological orientation would
dictate my choices. And I think there is a difference
between what you've asked and what I said.

Q All right. What is the difference between that part of
your theology and your choice being dictated by your

38

theological orientation? That is the difference, as I
understand it, between the two.

A Yes.

Q Could you explain to me what that difference is?

A Well, you know, I would say that sometimes it might not
be called in my own mind a theological issue. I think
that in terms of say the candidates, or if I felt that
there were issues involved which have to do with
integrity, welfare of human beings in the nation, that
to me would become a theological choice.

Q Would your own decision on issues be resolved by your
own theological orientation?

A In terms of my understanding the theology, yes.

Q All right.

A And let me say at this point. We have mentioned this
several times. Theology can be seen -- you know, we have
our Westminster confession of faith. That is our formal
statement of creed in the Presbyterian church, plus
other affirmations. What I'm trying to say is, I think
that your theology is lived out in all that you are and
do. So, therefore, you can't state in one situation
that I am a theologian and in another situation I am not.
Sometimes it might be neutral. But you're still
operating out of your theological perspective in all that
you are, do and say.

39

Q Could you define then theology?

A Theology comes from two words, theo and logos, our
knowledge of God, and therefore, in this discipline what
this knowledge of God has to say about who we are and
what we're about.

Q Would it be fair to characterize theology then generally
as your frame of reference, whatever belief you might
hold?

A No. That question does not catch what I'm saying. My
theology is a way in which I respond to a frame of
reference in my belief of a transcedent God, and the
scriptures and everything else. My theology -- I can
make a lot of mistakes, and therefore, I become off
course. I think what you were saying was what
Schielmarker was doing. And I think Carl Barth's
theology of the word is what called the church back,
which is what causes neoorthodoxy to mean so much to
me.

Q Do you consider this document, the sentiments expressed
on here, to be a theological statement?

A No. I consider it to be a result in my theological
orientation. You know, let me say, there are other
disciplines, areas of ethics and all, but I think
theology is the overall, in terms of my own frame of
reference, theology is your own conviction that gives you

40

your direction in terms of your decision about what is
right and wrong. So, though that would not be a form of
theological statement, that comes as a result of my
theological orientation.

Q Would you consider atheism to be a religion or to be a
theology?

A I have several answers to that, and I'm not sure you want
them all.

Q Well, try a few of them on me. Give me a summary of your
answers.

A All right. Let me say, it is not Christian theology.
There is a school of thought that says it's impossible
not to have a theology because everyone is a worshiper
of something, whether it's the dollar or power or what
have you. So, atheism is, in a sense a theology,
because it's not a Christian theology, it's not a
Buddhist theology, it's now a Jewish theology. I don't
really quite buy that. So, as a Christian theologian,
atheism, no, is not a theology.

Q Not in the same sense that Christian theology is a
theology?

A Right.

Q Would you consider atheism to be a religion?

A I do not believe so. I'm not sure what you mean by
religion, but as I hear your question, I don't think so.

41

Q If you were going to characterize atheism, if it's not
a religion and it's not a theology, is there some other
term you would use? Could you characterize it as a
value system or --

A Probably a philosophical orientation.

Q What besides the fact that atheism does not recognize
the existence of God would differentiate it from
a theology?

A Well, the answer to that is so obvious, I'm not really
sure what you're asking. If your philosophical orienta-
tion is that there is no God, well then, from there on
in they have a philosophical framework. I have a
Christian theological framework. And we're on two
pretty different trails.

Q All right. But in terms of your unwillingness to
classify it as a theology, is that not caused by the
fact that atheism necessarily denies the existence of a
God?

A Yes.

Q Do you feel it's appropriate for some legislative body
besides a state legislative body to be engaged in the
passing of legislation which dictates the content of
public school curriculum?

A Well, of course, I think there are certain area in the
whole educational set up, and I don't understand all of

42

it, and someone has to set a curriculum. Let me say, my
wife is a Texan, and she reminded me that in Texas, and I
think in Arkansas too, there is a legislative mandate
that you study Texas history. That's one thing. It
doesn't say how you teach it, et cetera, et cetera. This
is a course. The differentiation in terms of my statement
there is that by act of a legislature, you are telling
what to teach in terms of content and theory. And that's
where I think -- it's really in terms of what I would call
the ethics of it. I don't think they have a right to
do that.

Q So, then, if in the same vein that Arkansas requires that
Arkansas history be taught, but does not tell them how --
exactly how it must be taught, if the Arkansas Legislature
required that creation science be taught, but did not
tell them, you would have no objection?

A I have every objection in the world.

Q Okay.

A To say, to teach Arkansas history is one thing. But to
say to teach creation science, that's another thing.

Q Well, let's say that Act 590 merely provided that creation
science be taught. Then in terms of your example,
they would be consistent, would they not, the teaching
of Arkansas history and the teaching of creation science.

A Not at all. I have a conviction after about two months

43

of real heavy reading that there is no way, absolutely
no way, that you can teach creation science without
getting into theological and biblical interpretation
issues; and therefore, you are into religious matters.

Q Would you tell me what you've read in the last two
months which led you to this conclusion?

A I've read books and articles and things that you have in
the file there.

Q Some of which I have here?

A Right. I've gone back to my interpreter's dictionary of
the Bible, and commentary on Genesis written by the
way -- I have five commentaries. I bought one written
in 1904 by a conservative Englishman, and he would turn
over in his grave with this law. I went over and I know
that the material has not been decided upon. But I spent
a considerable hours looking at what has been sent thus
far to the Department of Education.

Q What did you see that had been sent in? Is that in
this? (indicating)

A That's in there, yes. As I say, I'm not big on that,
I was just curious.

Q Is this what you were talking about? (indicating)

A No. I just have some summary notes.

Q What did you look at? Do you recall?

A Oh, primarily the booklets for teachers and students,

44

edited by Seagraves.

Q Are you aware of whether that's been approved for use
under this law?

A No. You were asking what I had read though.

Q I understand that. But I just wanted to follow that up.
I have what I am going to mark as McLean Exhibit #2,
a two page document.

(Said document was so marked as
McLean's Exhibit No. 2, and is
appended hereto and appears on
page 95 .)

BY MR. WILLIAMS:

Q I would like for you to look at this document and tell me
if you can identify it.

(Counsel hands document to witness)

A Let me say, I took some notes and wrote down and
brought it along. I think if it's going to be a
document, I would like the privilege of looking over
it and making sure. I was over in the corner of the
educational building and I was trying to dictate with
my cassette. My secretary typed it.

Q You have not had a chance to proof that, is that what
you're saying?

(Witness reviews document)

A These are notes I took, impressions of the books they
had.

45

Q While I'm thinking about it, would you give me a list
of the books you've read in the last two months that
you said led you to this conclusion?

A Well, actually, I think the primary -- you know, it's
far more than reasoning. It's a conviction I've had all
along about the separation of church and state, and what
happens when the classroom in public schools gets into
religious matters. I think I brought along these three
and an article from other areas, you know, I think it
brought it into focus.

Q Do the other books that you have with you, I believe in
your portfolio attache there, did those influence you
in this way also?

A Oh, these books have been a part of my, you know,
theological training all along. I just went back down
through and checked --

Q Just give me the names and authors of the books you
have there.

A One is the Book of Genesis by S. R. Driver, Westminster
Commentary --

Q Is that the 1904 book that you mentioned?

A Uh-huh (affirmative). The other one, Interpreters
Dictionary of the Bible, and it's by a lot of editors,
articles on creation and et cetera. I just went back and
checked base in terms of where I am and where those folks

46

that are recognized as scholars today.

Q I note that in your summary or comments here that you
have performed in Exhibit 2 of the books which you reviewed,
you make several references to Biblical passages in
these books. Isn't that correct?

A Yes.

Q Are you aware that that would in fact violate Act 590?

A Yes. I'm aware that no choice has been made. It might
not even be these. I'm aware of the pamphlets that may
be put in, but also for some reason, they state in his
basic book ,which seems to be the overall viewpoint of
Seagraves, regardless as to what the textbooks under
his editorship do or do not say.

Q Are you aware if this is the only source for material
to comply with Act 590?

A I do not know what sources there are.

Q I'll show you a document which will be McLean Exhibit #3.

(Said document was so marked as
McLean's Exhibit No. 3, and is
appended hereto and appears on
page 96 ).

BY MR. WILLIAMS:

Q I'll ask you to look at this and tell me if you can
identify it.

(Counsel hands document to witness)

A Yes. Let me say, I haven't looked into this real closely.
These are current books on biology.

47

Q You haven't personally reviewed this as to whether you
would have any objection, theological or otherwise --

A Well, let me say that the one thing that came to my
mind or I guess maybe caught my attention, was through
the title "creation". They say that evolution denies
the creative powers of God. I know a lot of convinced
evolutionists who are very, very convinced that it's
all under the umbrella of the creative power of God.
So, therefore, statements like that do catch my eye.

Q All right. Now, that reference which you make under
"Creationists Say", which is part of a book entitled
Biology, An Inquiry Into the Nature of Life, you under-
stand that that's not being presented as fact, but it's
being presented as the creationists' position.

A Uh-huh (affirmative).

Q I would like to have you look at that again, this page.
Have you had a chance to look at this page out of this
text? (indicating) Other than that last statement?

A I have read through the page. I'm not sure what your
question is.

Q So, you have read it? That's my question.

A Yes.

Q Do you have any objections to that page?

MR. CRAWFORD:

I'm going to enter an objection at this point. As

48

to the witness answering that question, he is not a
lawyer, and whether or not there are legal objections to
that page, is something which he doesn't know. I'll
just leave the objection at that.

BY MR. WILLIAMS:

Q Well, I'm not asking for your conclusion as a lawyer.
I'm asking you as a person if you have any objections
to that?

A In what way?

Q Well, do you feel that that material presented on that
page could be presented without violating your own
theological framework which caused you to have the
concerns about Act 590?

A I would have to see the textbook and the chapter and
everything else.

Q I'm asking you just to the extent as far as that page
goes.

MR. CRAWFORD:

The witness has stated that he's unable to answer
that question without seeing the whole book.

MR. WILLIAMS:

I understand that, but I'm asking just looking at
that page.

MR. CRAWFORD:

But the witness has said that he's unable to make

49

an evaluation based on looking at one page.

MR. WILLIAMS:

I'm not asking him to evaluate the entire page.
I'm asking -- I mean the entire book. I'm asking him to
evaluate this one page in isolation.

A In isolation I would say that getting into the discussion
of "Creationists Say", you will get into a discussion
of theology and Biblical interpretation, which to me
would be offensive.

BY MR. WILLIAMS:

Q All right. Do you think that evolution should not be
criticized in the classroom?

A I don't think I understand your question.

Q Well, do you believe in a scientific theory being
presented and then having criticism of that theory
also presented?

A Allow me to answer this way. If I have a student in a
science classroom, I think the academic enterprise says
you are free to criticize or question anything which
remains a theory.

Q Looking at that page again, could you please identify
for me that portion of the page which you feel involves
religion?

A I think the total impact of it would involve religion.
Statement two says, "Since no one was present at the

50

creation, neither creation nor evolution is provable."
That statement in itself would cause -- the thing about
creation science is that it causes a person to jump back
either consciously or subconsciously to an interpretation
of Genesis. And though I see this indirectly, I see
it as consistent with what I have voiced in three
there.

Q In terms of discussing evolution in a classroom, don't
you think that could also indirectly cause someone to
jump back to consider creation and to consider Genesis?

A I don't think it has to.

Q This document includes such things -- in what Creationists
Say, it includes such things as radioactive dating,
Lyell's theory of slow change, dating of rock strata,
the fossils, animal phyla, transitional forms, mutation,
species, I mean, all of these things are discussed.
Do you consider those to evoke some sort of religious
response?

A Not the way you read it, but I am still talking about
the total impact of the total statement.

Q Then in terms of your own framework, you completed
theological seminary what year?

A 1951. I did my graduate work in 1952.

Q That's approximately thirty (30) years ago. Since that
time you have been involved actively in the ministry?

Transcript continued on next page

Deposition of Bishop Kenneth W. Hicks

                                No. LR-C-81-322
 
 
REV. WILLIAM McLEAN, et al      *
                       Plaintiffs            *   UNITED STATES DISTRICT COURT
                                               *
VS                                           *   EASTERN DISTRICT OF ARKANSAS
                                               *
BOARD OF EDUCATION OF THE   *   WESTERN DIVISION
STATE OF ARKANSAS, et al        *
                       Defendants        *
                                               *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
 
        ORAL DEPOSITION OF BISHOP KENNETH W. HICKS
 
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

APPEARANCES:

                 MR. PHIL KAPLAN, ESQ., Kaplan, Hollingsworth,
                         Brewer & Bilheimer, 950 Tower Building,
                         Little Rock, Arkansas 72201
                                          AND
                 MS. JOAN VEHIK, Esq., Cearley, Gitchel, Mitchell
                         & Roachell, 1014 West Third, Little Rock
                         Arkansas 72201
                                          For the Plaintiffs

                 MR. RICK CAMPBELL, Assistant Attorney General, and
                 MR. DUB ELROD, Assistant Attorney General, Justice
                         Building, Little Rock, Arkansas 72202
                                          For the Defendants

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

                 ANSWERS AND DEPOSITION OF BISHOP KENNETH W. HICKS,
a witness produced on behalf of the Defendants, taken in the
above styled and numbered cause on the 2nd day of December,
1981 before Laura D. Bushman, a Notary Public in and for
Pulaski County, Arkansas at the office of Ms. Joan Vehik,
1014 West Third, Little Rock, Arkansas at 11:25 a.m.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

                 LAURA BUSHMAN COURT REPORTING SERVICE
                         1100 N. University, Suite 223
                         Little Rock, Arkansas 72207
                                   (501) 664-7357

2

                                   INDEX
TOPIC                                                          PAGE

Witness Sworn in: Bishop K. W. Hicks                3
Direct Examination by MR. CAMPBELL                 3
       Hicks Exhibit #1 marked for the record      60
           [Exhibit found on page 63.]
       Hicks Exhibit #2 marked for the record      61
           [Exhibit found on page 64.]
Witness Signature page                                  65
       Correction page                                      66
Certificate                                                      67

3

                          DIRECT EXAMINATION
BY MR. CAMPBELL:

Q. Good morning, Bishop Hicks.

A. Good morning.

Q. My name is Rick Campbell and I am one the attorneys
representing the State Board of Education in the
litigation which is entitled McLean V. State Board
of Education. I am here this morning to discuss with you
a little bit about what your proposed testimony will be
at trial, to find out a little bit about your background
since the Plaintiffs have indicated that you will be
called as a witness in the case. If at any time you
would like to take a break to go to the restroom or get a
drink or anything, just let me know. There will be no
problem with that at all. Would you please state your
name and address?

A. Kenneth W. Hicks. **** ***** *******, ******
****, ******* *****.

Q. Are you married, Bishop Hicks?

A. Yes.

Q. Do you have any children?

A. I have two children, two daughters. Would you like
their names?

Q. Yes, sir.

A. One daughter is Linda, Linda Diane and the other

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daughter is Deborah Dawn Swenson, S-w-e-n-s-o-n. Q. Were
they educated in the public schools?

A. Yes, sir.

Q. Where did they attend schools?

A. As a minister I moved on occasion. So their
grade school education -- well, their high school
education took place at several different places. But in
the public schools of Nebraska. The oldest daughter
is a graduate of Norfolk Nebraska High School. The
youngest is a graduate of Kearney, Nebraska High School.

They did their college work -- the
oldest daughter did hers at Kearney, K-e-a-r-n-e-y, State
College in Kearney, Nebraska. She got a Master's degree
from Nebraska University. The youngest daughter did her
college work at Kearney State College and the University
of Nebraska.

Q. Where are you presently employed?

A. I'm a Bishop of the United Methodist Church
of Arkansas, the Arkansas area as we call it. And
I reside in Little Rock. My office is in Little Rock.

Q. What are your responsibilities as Bishop of the
United Methodist Church?

A. My responsibilities are the general oversight of
the Churches of our denomination in Arkansas of which
there are approximately 750 to 800. I'm not sure just how

5

many. That oversight includes the appointing of ministers
to those Churches to serve as pastors. Also in the State of
Arkansas my role is to assist in providing leadership,
coordination and counsel in the entire life of our
denominational structure and thrust.

Beyond Arkansas, part of my
responsibility is that of what we call in our
denomination that of General Superintendency, which means
that in addition to being Bishop of Arkansas, I'm really
also a Bishop of our entire Church with responsibilities
from time to time beyond the limits of Arkansas.

Q. In your capacity providing leadership, coordination
and counsel to the United Methodist Churches in Arkansas,
have you developed a position, a United Methodist Church
position on Act 590?

A. No, sir. In our denomination the General
Conference of our Church speaks in a legal way for
our denomination. That is a representative meeting that
meets every four years and the total product of that is a
book of Church law that we call "The Discipline." And within
that are certain documents of historical background, our
social principles as well as details of Church law. This
product of this document is the official position of our
Church.

Beyond that, as a Bishop of the Church, my

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role would be to interpret issues as best as I see them in
the light of our heritage and history and doctrine. But I
have not developed, nor would I really have the privilege of
establishing a doctrine or an official position on this
issue.

Q. As a Bishop in interpreting issues in light
of Church history or Church tradition, have you developed
a position on Act 590?

A. Yes, sir.

Q. Has this been disseminated to all the other United
Methodist Churches in Arkansas?

A. My views have been disseminated in various ways
throughout our Churches, through our Church paper, "The
Arkansas Methodist", and some of that got into the --
at least the Arkansas Gazette. I did not submit that to
the "Letters to the Editor", but apparently somebody
did. I have -- I don't recall that I have made any
addresses on the creation-science bill, per se. Last annual
conference time I made a series -- I presented a series of
devotionals on the meaning of the creation accounts in
Genesis. The basic material for these had been prepared
some years ago. And that was the basis of the material that
I used.

Q. You mentioned the last annual conference. How is that
different from these four year conferences?

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A. Yes, sir. In Arkansas we have in our parlance there
are two what we call annual conferences. Now that is a
geographic area as well as an occasion. There is a North
Arkansas Annual Conference and the southern part
of Arkansas, roughly, is the Little Rock annual
conference. But there is a session annually that we call
the annual conference session of each of these bodies.
And this is a time when business is conducted and
ministers are ordained and persons are received into
various relationships within the goals and objectives of
that body.

Q. Would positions be developed at these annual
conferences or would they be developed, as you suggested
earlier, at this conference held every four years?

A. A position on social issues?

Q. Uh-huh.

A. The annual conferences do have the privilege
of submitting resolutions for the consideration of that
body. And that is an action that comes out of an agency
of that annual conference or a person in that annual
conference session. But again, that becomes the action
of that body of people. It is not an action that speaks
for all the United Methodists of that agency.

Now, as verses the four year
experience, the General Conference, that does become -- the

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action of that does become the official position of the
United Methodist Church. What we do at the annual
conference by way of social position becomes the position of
that annual conference and is submitted to the people for
their consideration.

Q. To your knowledge, has there been a resolution
presented to an annual conference in Arkansas concerning
the teaching of creation-science in public schools?

A. I wish I had looked this up beforehand. It seems
to me that one of the annual conferences did take some
action regarding that and the other one did not. And I
can't recall the accuracy of that. I could find that out
rather quickly for you if you desire.

Q. Do you know about when this position would have
been taken?

A. Yes. This would have been in -- the Little Rock
Annual Conference met beginning on Memorial day until I
think it was Thursday of that week. The North Arkansas
Conference met about two weeks later.

Q. Do you recall generally what the substance was of
the position taken by the conference?

A. The -- if there was a position -- and as I said, it
does seem to me that there was in one or the other
of them -- it was a position upholding the stance that --
against creation-science. The creation-science bill. But I

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have to repeat that I'm not sure that that was done, which
would also be my way of saying this was certainly not a
priority within the agenda of either of the annual
conferences.

Q. Would any interpretation of issues which you made
carry the weight of the United Methodist Church or
would it simply be your own position?

A. So far as I am concerned and understand my role
and the law of our Church, this would be my position because
our general conference, our general Church hasn't made any
kind of disposition of this issue. Our last meeting was
April of 1980 of that body.

Q. Before you became the Bishop of the United
Methodist Church in Arkansas, where were you employed?

A. I was a pastor of Trinity United Methodist Church,
Grand Island, Nebraska for approximately three and a
quarter years. And at that time the body met that
elects Bishops and I was elected. Prior to that I was
for five years a District Superintendent in the Nebraska
Annual Conference. And prior to that for years as
a pastor.

Q. Before you became the Bishop of the United
Methodist Church in Arkansas, had you ever had any
experience with the teaching of creation-science in
public schools?

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A. No.

Q. Where did you graduate from high school, Bishop
Hicks?

A. Iola High School, Iola, Kansas.

Q. Did you study origins in high school?

A. I took -- I had very little science in high school. I
don't recall that we did study origin. My -- the only
science subject that I remember was chemistry. There might
have been some others, but I'm not sure.

Q. Where did you attend college?

A. I attended college and graduated from a small
Church related college at York, Nebraska called York
College at that time. It was a college of the
United Bretheren Church, a denomination in which I was
reared. Since those days that denomination merged
with another denomination and then that combined
denomination merged with the Methodist Church in 1968. I
joined the Methodist Church, however, in 1946 and became
a member and minister at that time.

Q. Did you take any science courses in college?

A. Yes, sir. Zoology is the one I recall. The worst.

Q. Do you recall studying origins in zoology?

A. Yes, in a general way, I do. There were references
to beginnings and to the different stages of development
apparently in certain species, et cetera.

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Q. Do you recall whether a conflict ever developed
concerning evolution in the zoology class that you took?

A. No, there was never any conflict.

Q. Are you a member of any professional associations?

A. No. I can't think of any that I am a member of.
By professional associations, you mean other than
institutional boards and things like that?

Q. Right.

A. No, I can't think of any that I am a member of.

Q. Are you a member of the Society for the Study
of Evolution?

A. No.

Q. Are you a member of the American Association for the
Advancement of Science?

A. No.

Q. Are you a member of the Committed of Correspondence
in Chicago, Illinois?

A. No.

Q. Are you a member of the group called CARE which is
Concerned Arkansans for Responsible Education?

A. No.

Q. Are you on the mailing list of any organization
which has a position on whether or not creation-science
should be taught in the public schools?

A. I can't recall that I am on any regular mailing list.

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Now, as is indicated in the material, from time to time a
publication will be sent me. But I am not aware that I'm on
any regular mailing list that has as its major concern this
area at all.

Q. These publications which are sent to you, are they
sent to you directly from the organizations or are
they sent to you from individuals?

A. Both. They'll come -- many interested individuals
will send me things that they read and picked up. Now
and again there will be something that will come as a
sample that may be a subscription is desired of. And now
and again there will be a mailing that would come from
some professional or educational agency of some sort
that I presume is put out as a policy paper by some
interested group.

Q. Bishop Hicks, the Plaintiffs have listed you on a
witness list and suggested you would testify concerning
your reasons for the opposition to the teaching of
creation-science and your unsuccessful attempt to testify
before the Arkansas Legislature in opposition to Act
590. I would like to discuss each of those topics
with you and just generally let me ask you what will be
the subject matter of your testimony concerning the reasons
for your opposition to the teaching of creation- science?

A. I think the general subject matter will be based,

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first of all, on the belief that this bill represents a
transgression of the First Amendment and the separation of
Church and State. And my basis for my rationale for this
has to do with the conviction that in order for the
creation-science curriculum to be installed or put in place,
it will be necessary for the State to prescribe limits,
bounds, definitions that will indicate how a teacher is to
be prepared for the teaching of this when the teacher is
prepared for the teaching of this. And I believe that that
represents a responsibility as being assumed by the State
that the State does not have under the First Amendment.

I believe also that the matter that the
data or the content of the creation-science thrust cannot
be taught without ultimate reference either to a Creator
and the nature of that Creator or to the Biblical data
from which the bulk of our culture would draw in their
understanding of the creation. And I believe that is
in effect mixing apples and oranges. My contention
is that the material in the Scriptures represents data
of faith, faith statements, theological statements, the-
why, the meaning of creation, but does not represent an
enlightened account of the how of creation and was not
intended to.

I have read some on the issue in behalf of
creation-science in this material. As a matter of fact,

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there is some material in there from the Institute of
Creation Research, I believe it is called, in California,
which as I understand is a prominent distributor of
material, curriculum materials for creation-science. There
is one document in there that lists the tenets of
creation-science. One listing has to do with Biblical
creation-science. Another listing has to do with just
scientific creationism, which would be as the material
indicates would be the stance if you are in a setting where
the Bible could not be referred to. But those tenets of
just scientific creationism that they hold to repeat where
numerous frequency, make reference to the Creator, to the
nature of the Creator and to a description of the Creator
that, if not in detail, describes -- at least by implication
describes a literal account of the first two Chapters of
Genesis. So for those reasons, there are some of the
reasons I believe that this bill is a contradiction of the
First Amendment. But I also believe that it is ambiguous
and that it is not only confused, but that it is confusing.

Q. Are there any other reasons that you are opposed
to it?

A. Well, beyond this, I don't know just how far one
really wants to go or whether these are other reasons or
not. But I believe as I indicated earlier so very deeply
that what is being attempted here would be, you know, it

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would be using religion and a religious orientation in a
context that is not intended by the religious literature.
And an analogy might be that I see what would be done in
this as what might be done if an auto mechanic's tools were
used in surgery and a surgeon's tools were used to work on
cars. The outcome would definitely have limitations.

And so this again, you know, I feel --
this bill, I believe, puts limitations on free inquiry
which is what public education, I believe, is all about.
And it also takes for granted presuppositions about what
is appropriately creationist. So these represent the
substance, I think, of my positions.

Q. Are there any other reasons that you oppose the
bill?

A. Any other reasons do not come to mind at this
time.

Q. Would you expect that these will be the reasons that
you will testify to at trial?

A. I think so, yes. These will be the basic reasons.
These are the kinds of things I've been trying to work
through in my own mind as I've dealt with this matter. I
might throw in one more. I indicated that I feel that the
bill, for the reasons that I gave, is ambiguous. There is
also reference within the bill to some terms. I forget just
how the terminology goes, but theological liberalism,

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humanism. There is even a reference in there to Atheistic
Churches, which is a phrase that I'm not familiar with at
all, is an Atheistic Church. Again, the State eventually
assumes the right to decide what is theological liberalism,
what is humanism. And seems to place so much import on the
rejection or the diminishing of those terms that the State
obviously plans or intends to have the power and the right
to decide what the definition of those will be. And this
further I think represents the confusion and the ambiguity
of this bill. And that further magnifies the State stepping
into an arena that is not prescribed by the Constitution.

Q. You mentioned that one of your reasons for opposing
the teaching of creation-science in the classroom was
that the State must prescribe limits, bounds and
definitions of how creation-science would be presented.
What's wrong with that?

A. I think that those limits and bounds have inherently
at the core of them religious orientation, decisions
or definitions that are -- that have Biblical orientation
that is not unanimously agreed upon by any means. What I'm
really suggesting here is that those limits are basically
theological definitions, theological limits, value limits
that are religiously oriented. And my -- it may not be made
clear as to how those limits, how those definitions, how the
content of that is to be -- who is going to be the authority

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for saying that here is the limit that beyond which a
teacher must not cross without being into the area that is
forbidden by the bill. Or here is the line at which a
teacher is prepared to teach objectively creation-science as
well as evolution. So it is again -- these are limits and
these are standards, these are policies that are inherently
theological and philosophical in nature, I believe.

And first of all, I don't believe the
State has the privilege of setting those. Secondly, the
State hasn't indicated how it plans to do so.

Q. Why do you think that creation-science has a religious
orientation?

A. Well, what I -- it seems to me to be plain that
what creation-science is advocating is attempting to
address a point of view that apparently the proponents
of creation-science believes does not have religious
orientation. Therefore, they are couching a -- this
couches an attempt to teach science by the very title
itself from the standpoint of a Creator or a supernatural
kind of beginning. So that is my first reason.

Secondly is that all of the material I
have to say without exception -- I have not read widely
in the area of creation-science I admin. The material I
have read has the premise of having the ultimate aim
of teaching science in a way that will conform to Biblical

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literalism. And the people that I have talked to or the
people that have talked to me who are for creation-science
have -- I believe I could say honestly without exception
-- used as a rationale for their belief in behalf of this
bill, that a religious orientation or a view of God or a
reference to God certainly ought to be -- have its place
within the classroom. So the overall exposure that I have
had to it seems to have that as a basic presupposition.

Q. Do you view the terms Creator and creation as
inherently religious terms?

A. I do. I do basically. So without feeling that that
has to be the case. But, you know, these terms have
been brought into place with regard to this bill as
over against a view of science that is not at all
religiously oriented and purports to be. So my
assumption really has to be that it is being thought
that creation-science, that creationism implies a
Creator. What material, again, I have read on
creation-science does really imply that rather specifically.

Q. Well, do you think that your feeling that the
terms Creator or creation may be inherently religious are
due to your own academic and professional training
in the ministry as opposed to some other reason?

A. I'm not quite clear I guess in regard to my own
mind. I'm sure that my own background does have a very

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evident application here. No doubt with that. Again, I
guess I see the creation-science, the creation-science bill
was brought to pass as an alternative. And there is no way
that I can believe that it is intended that this bill is
going to be a bill that is intended to be devoid of a
devinely defined creative force or power. Otherwise we are
basically back in the ballpark of pure science.

Q. Why couldn't creation-science as you understand it
be taught as pure science?

A. I think it cannot be taught as pure science because
I see no way how the option of the creative act, by
whatever that may mean to the proponents of this bill,
I don't see how the option of presenting the creative bill
verses the option of just open conjecture and theorizing
along the evolution lines, I see nothing new that would
be brought into the situation that would be valid without
reference to a new ingredient, an added ingredient
namely that they are -- behind the Creative act that there
would have to be a creative intention by a Creator.

Q. What's wrong with that?

A. Well, then someone is going to have to be prepared,
it seems to me, to pursue the nature of that Creator with
those who are making the inquiry, with the pupils in
other words. Or the alternative would be that once
the act of creation by a Creator is thrown out, that

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discussion of that would have to be cut off. And
no inquiry would be allowed by the provision of the law
itself. I can't understand how creation-science could be
taught in an open educational setting without the
possibility of a pupil asking, "Well what or who is the
Creator?" And at that point, by the nature of the
law itself, the discussion would have to end.

And I note within the bill itself that
the methodology that seems to be propounded by the bill
for teaching creation-science is a lecture methodology.
That's mentioned at least twice in the bill. Which
presupposes a limited kind of -- certainly a scientific
inquiry. Not an exchange. Not really inquiry, by
the dissemination of information. And that, again,
spells -- at least spells limits on the openness of this
whole enterprise.

Q. Well, do you think that "what or who" questions are
never asked when evolution is presented in the classroom?

A. I really don't know. I have no idea. I imagine they
are. I would think that they probably would be asked
sometimes. The reason that I would assume that is because
of the culture -- of our culture that has enough religious
clout or religious input into the formation of lives that it
is logical that it probably would be asked at times.

Q. Well, if the questions will be asked sometime when

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teaching evolution, what's wrong with them being asked
if you are teaching creation-science?

A. It seems to me that if they are asked and the answer,
you know, is in the realm that these are theological and
these are philosophical data from here on, then you
have, you know, you have a premise, you have a bridge to
enable scientific inquiry to know that there is an
area where science can be pursued. There is an area
where, you know, the values and faith kinds of
imaginations or considerations -- those belong in a realm
that is not in the overall scientific pursuit.

And my concern here is this matter is
that it seems to me that the basic premise -- one basic
premise at least of the creation-science bill is that
somehow this theological and philosophical data can be
inserted into the process of the inquiring into our origins
and beginnings and so on.

Q. Well, if it could be presented in a scientific manner,
would you still oppose its being taught?

A. It is difficult to respond to that because I don't
believe it can be. That's a theoretical outcome that I
don't believe is possible. So I can't really respond to
that adequately.

Q. Again, why don't you think that's possible?

A. Who don't I think that's possible? The reason I don't

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think it is possible is that -- and your question I
believe was -- I was thinking and I should have been
listening. The question that you asked me was why cannot --
state it again for me.

Q. Why is it not possible for creation-science to be
taught in a scientific manner?

A. The reason that it is not possible for
creation-science to be taught in a scientific manner is
that the basic presuppositions of creation-science are
several fold. but among those are that a Creator is a
beginner of the process, which immediately places the
whole discussion on a theological and philosophical
plane. And secondly, that the moment that the process
gets over on that plane, then the discussion has to
change from scientific data over to the nature of Creator or
the nature of this great supernatural act. The whole thing
of -- well, I'll just stop at that point I guess.

Q. What you are saying is -- and I don't want to
mischaracterize your testimony at all -- once a Creator
is mentioned or referred to, then we are out of the
realm of science and into the realm of theology?

A. Seems to me that if it is pursued, that it would be
in the realm of theology and philosophy.

Q. What if it was not pursued?

A. Well then there would have to be -- if, you know,

23

the legal provisions were followed to the letter, then I
would assume what would have to be done for a teacher or
somebody to say, "Well, this is an area about which
there is a great deal of opinion and there are varied
points of view. This is not an area that we pursue in
the public school science class." Something to that
effect I would suppose.

Q. Why couldn't a teacher do that?

A. I think the teacher not only could do that, but
would have to do that.

Q. Under Act 590?

A. Yeah. Uh-huh.

Q. Is it your understanding that publications which
you have looked at from the Institute for Creation
Research are the publications that will be used in the
public schools of Arkansas?

A. No, I have no basis to think that at all. Again, this
is one of those mailings that came to me voluntarily and
that's the only reason I happen to have it in my
possession. And I understand that it is a reliable center
or a prominent center from which creation-science material
emanates.

Q. But it is your understanding that the State would be free
to seek its own publications?

A. Yes.

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Q. You mentioned that Act 590 was ambiguous. In what
ways do you find it ambiguous?

A. I think it is ambiguous in the -- for one thing in
what it would require by way of the orientation and
preparation of instructors who -- science teachers, for
instance, who have been taught within a framework of
a discipline that is outside of the provision of this
bill. I think it is ambiguous in terms of what an
instructor or instructors or School Boards, School Districts
would have to undergo by way of preparing for the
implementation of the creation-science material or data.

That is one reason that I think the
bill is ambiguous. And it does not say, in other words,
what the consequences are to teachers or to pupils. It
does not indicate what kind of preparation a teacher
would have to undergo or what would constitute the
arrival at the preparation satisfactory -- satisfactorily.
It is ambiguous in those areas.

I think it is ambiguous in another area
in its assumption, some of its assumptions. Namely that
the teaching of an evolutionary process which is really
not described -- as I have read the bill, evolution is
not described. But the assumption is that the
evolutionary process is counter in all cases to a belief
in a Creator. And that the creative process and the

25

reality of the Creator have nothing in common with each
other. I think that's a religious assumption that
is being made. A theological assumption that is
being made.

It is also ambiguous in the terms of
the terminology that I used earlier which seems to be, by
the very tone of the terminology of the phrases that
refer to theological liberalism, humanism, atheism
and the one -- the reference that indicates Atheistic
Churches. That seems to carry the tone of importance, it
seemed to me, of heaviness within the bill that says to me
that until those things are described -- if these are
important to the State or important to the legislature as
they obviously are -- that there needs to be more of a
clarification of what is intended and who is included and
who is left out of those terminologies.

Q. Why couldn't the preparation of materials which would
be used in presenting creation-science in the public schools
of Arkansas be left up to the professional judgment of
teachers and educators without the State having to mandate
that?

A. Well, I think one -- there is called into question
the criteria and the credentials by which teachers,
school boards, others who make the selection of
curriculum -- it is called into question the credentials

26

by which those groups have the background, have the
training, have the rationale for making a sound
determination of scientific material, creation-science
material.

Q. The second topic which the Plaintiffs have indicated
that you will be testifying to at trial is your
unsuccessful attempt to testify before the Arkansas
Legislature in opposition to Act 590. I would like to
discuss that with you for a few minutes. First let me ask
you when did you first learn that a bill requiring the
teaching of creation-science would be proposed in the
Arkansas Legislature?

A. You know, I wish that I could pinpoint that for you
and I cannot. The nature of my work is that I am in and
out of the State a great deal. And some days before it
came to a time of decision I was aware that this was
somewhere in the process. And by some days, you know, I'm
just pulling out something here like ten days, two weeks in
advance. Something of that sort. And I was aware that
something like this was in the process. And I frankly --
what little I know about it at the time, somehow or other
caused me to think that it wasn't as far along and that
there wasn't as serious an effort in this endeavor as there
apparently was. And then my duties took me hither and yon
and I lost personal contact with it.

27

On the day -- again I don't have the
date, but it would have been -- at least it would have
been the date that it was passed in committee. At least
it would have been that date and I'm not sure whether it
was the date that it was really adopted by the
legislature or not. I learned early in the morning that it
was going to be at least in the committee that day, and I
think that's the stage at which I learned about it. And I
had committments already that day that did not allow me to
go up to the Capitol personally.

I asked Reverend George Tanner, who is
counsel director, which is a person that coordinates the
programatic thrust of the Little Rock Annual Conference,
if he would be able to go up and represent me.

I had conversation by phone with
somebody at the State House and I don't know who it was. It
was -- and I'm very sorry about that that I can't detail
this better. It was -- well, I can't say at this time
whether it was a legislator -- whether it was a Senator's
staff person or not. But I had contact with the Capitol by
phone. And they indicated that it would be in the committee
discussion at such and such time. Reverent Tanner went up
and his report back to me was that, "I attempted to speak on
your behalf and no provision was allowed for this." And he
indicated that there was a great deal of confusion in the

28

Chamber and that there was considerable evidence of people
who were proponents of the bill and persons who were very
vigorous and he described the climate of rather aggressive
persons who were not conducive to allowing open
discussions. But that -- and despite the fact that he
attempted to at least give some personal word from me, this
was not possible in the few minutes that was allowed for the
discussion at all.

And that is the -- is the extent
-- at that time that was the last of my attempts to
intrude or to give some input into the situation after I
learned that it had been passed. And can you tell me if
it was -- was it adopted that day, the same day it came
out of committee?

MR.KAPLAN: I don't know. It was either
the same day or the next day, but I've forgotten.

A. And so I gave up on it partly because of the press
of my responsibilities.

Q. Do you recall who it was that told you that the bill
was going to be introduced in the legislature?

A. No. No. No, I don't recall that.

Q. But you think that you learned of it sometime
during 1981?

A. Oh, yes. Yes. Uh-huh.

Q. Did you contact anyone when you first learned of

29

the bill possibly being introduced in the legislature
concerning your feelings about the bill?

A. I made a couple of phone calls and I cannot tell you
to whom I made them. This was a hurried kind of
transmission of information to me. And I think in both --
in the two or tree instances I asked the secretary to get in
touch with the person she had been informed I ought to be in
touch with. I pressed that as far as I could go. And I
can't tell you who those persons were. I think in all cases
they were not directly -- were not legislators, but were
staff persons.

Q. Do you recall whether this could have been January or
February?

A. Oh, that would have been very close to the time
of the adoption of the bill. Within a day or two prior to
the adoption of the bill.

Q. That was the first time you had ever done anything
concerning the bill?

A. Yes, right. Yeah.

MR.KAPLAN: Can we go off the record for a
second?

[Off the record discussion.]

Q. Why were you concerned with this bill being
introduced into the legislature?

A. I was concerned because basically -- because of the

30

-- my first initial concern was that I perceived this as
a transgression of the First Amendment. That this was
going to result in a mixture of Church and State that I
did not think was appropriate.

Q. Do you recall the substance of any of the telephone
conversations which you or your secretary may have made
concerning the creation-science bill?

A. The substance of them was a statement of my
position. And for the persons that I was talking to,
that I would appreciate it if the person that I was
trying to reach, the Senator or the Representative as
the case would have been, might know of my point of
view. And I asked that that be transmitted to that
person. That was the substance.

Q. Do you recall who you were trying to transmit your
message to?

A. I don't recall that. I don't recall that.

Q. Were they your local legislators or were they
friends of yours or --

A. No. These would have been persons that I
understood were directly related to this in some way or
was in charge of, you know, guiding this into committee
and that sort of thing. They were not friends, they were
not -- basically names that had been given me as being
persons that I should get in touch with.

31

Q. Who gave you those names?

A. These names came -- I don't know who these people were
actually by name. But these are people who know of my
concern, left word with the secretary that "At such and such
a time, this is on this kind of timeline. And so if the
Bishop wants to respond, he should call so and so at this
number." It was that kind of information.

Q. How would they have known of your concern in this
area?

A. Well, these could have been people in our conference
and area staff. These could have been people there who
-- sometimes radios going or people who read something in
the paper that I hadn't read. They would have been that
type of person.

Q. How would they have known that you were concerned
about it?

A. Oh, through informal discussions as occurs every
now and then as we gathered for various kinds of meetings.
And sometimes if there is something that's hot, an
issue around that's getting a lot of attention, why we
make kind of comparison notes on it or exchange views
on it as we go in to get a cup of coffee in the morning.

Q. Well, when do you think you first discussed your
views with anyone concerning the teaching of
creation-science in the public schools?

32

A. That is very difficult to say. It would have been --
this particular subject would have been very close to the
time that the bill was enacted. Within these prior days.

Q. Within a week?

A. Probably within a week, yes. I think, though, that
the persons around whom I associate a lot, you know, in
our professional jobs down there at our headquarters,
that these would have been persons who would probably
have known my general attitude and general position in
this area.

Q. So prior to a week before the bill was enacted,
you had not had any involvement in --

A. I don't believe so. I think not. I think not.

Q. You had not talked to any legislators about it
prior to the week before its enactment?

A. No, I'm confident I did not.

Q. You did not talk to any employees of the
legislature prior to the week it was enacted?

A. No, assuming that it was in the committee
discussion a day or two prior to its enactment, I know I
would have not talked to employees of the legislature
earlier than that.

Q. Which committee was this that you are talking about?

A. I don't know that. It was whatever committee was
dealing with it, and I frankly don't know.

33

Q. Do you know if it was in the House or the Senate?

A. This would -- I believe that this would -- I believe
this would have been the House.

Q. Had you been contacted by any individuals or
groups prior to a week before the enactment of the
creation-science bill concerning your views?

A. No, no.

Q. Have you made attempts in the past to testify before a
legislative committee?

A. Only, only -- there has only been one occasion
which was approximately three or four years ago. And the
incident had to do with a -- the consideration of a
proposed tax measure on Church property. And I was -- I
did appear before a committee that was chaired, I
believe, by Dr. -- the optometrist. I can't think of what
his name was. Prominent in legislature at the time from
Pine Bluff. You can't help me with that can you?

Q. No.

A. That's the only time I've appeared before a
legislative body.

Q. Were there others who appeared before the
legislative body at that time?

A. Yes. Yes.

Q. On both sides of the issue?

MS. VEHIK: I'm going to object to these

34

questions. I don't see any relevance.

Q. But on either side of the issue or both sides of
the issue?

A. I frankly don't know whether both sides were
discussed. But we were -- at that time our side was
given an opportunity to assert an opinion.

Q. How did you know that that particular tax bill was
going to be before the legislative committee on that day?

A. I can't say. I don't recall how that word came to me.

Q. How was it that you decided you would testify?

A. There was a small group of interested persons.
Somebody did call me and said, "If we could have the
opportunity to make a statement, would you be willing to
go?" And I indicated that I would on this issue. And I
can't recall who that was.

Q. Do you recall the length of time between when you were
first contacted by the person asking whether you would
testify and the time you did testify?

A. I think it was the same day. I think it was before
noon and testimony took place, our appearance took place
approximately -- not far from the noon hour. Maybe 12:30,
1:00, 1:30, something like that.

Q. Did you personally make any arrangements to testify
or was that done for you?

A. No, that was done for me. I didn't personally do

35

it.

Q. How long did your testimony --

MS. VEHIK: I would like to note
my continuing objection to this line of questions and
that they are not particularly relevant to the testimony
that the Bishop will give during the trial.

Q. Excuse us, Bishop Hicks. This is just some things
that lawyers have to do back and forth. How long was
your testimony at that hearing?

A. It was very brief, very brief. Probably only a minute
in time.

Q. Do you know how long the committee heard testimony
on the tax measure?

A. No, I have no idea.

Q. Did you leave immediately after your testimony?

A. Very shortly. Within thirty minutes.

Q. Do you know whether all bills which are considered by
the General Assembly are subject to committee hearings?

A. My technical knowledge of the legislative process
is minimal. And I frankly don't know. My assumption is
that, though there may be exceptions, that surely most
of them do go through a committee process.

Q. Do you know whether or not there are limitations
placed on the lengths of time a hearing will last
generally?

36

A. No. I don't know that.

Q. You mentioned that someone contacted you by
telephone concerning the hearing date on Act 590 -- what
later became Act 590. Do you know who that someone
was?

A. No, there were several sources. And at the time I
made no attempt to remember and I did not -- I made no
attempt to record it and I frankly don't know. Somehow
or other, word was coming to me from more than one source
that this is pretty far along and, you know, "If you are
going to do anything, that it's got to be done shortly."
And these -- I could say and would say that these, you
know, were persons of -- I think in all cases of my --
of my professional commonality and not -- were not persons
of a -- of a legislative orientation that were seeking any
strength that I could bring one way or other. They are
persons who shared mutual concerns as me.

Q. Do you recall the length of time between that
telephone conversation alerting you to the committee hearing
and the date of the hearing?

A. The time when I was aware of it was the same day.
It was that morning that I was aware that it was going
to be discussed in committee. It seemed to me that word
was that 9:30 or something like that this will be on the
docket and there was no way that I could get loose at

37

that time. But it was that same morning.

Q. Prior to that day, had you prepared remarks
concerning your position on --

A. No.

Q. -- the model bill?

A. No.

Q. After you were contacted by telephone, but before the
scheduled time of the hearing, did you prepare remarks?

A. No.

Q. Did you go to the Capitol that morning yourself?

A. No, I didn't go to the Capitol that morning
myself. My committments wouldn't allow me to do it. And
I asked Reverend George Tanner to go in my stead.

Q. Prior to -- excuse me. Go ahead.

A. I was going to say the context of that request
was for him to, you know, register on my behalf, in any
manner that he could, my opposition to this bill and my
concern about it.

Q. Prior to the telephone call which you received that
morning telling you of the committee hearing, had you
discussed your concerns about the bill with Reverend
Tanner?

A. I can't say for sure. If I did, it would have been
in a casual way that one might discuss a news item with
which one has some difference of opinion. And if there

38

was a discussion, it would have been within that context.

Q. What amount of time passed between the time that you
received the telephone call telling you of the committee
hearing and the time you first contacted Reverend Tanner
about appearing before the committee?

A. Probably twenty minutes.

Q. Why did you contact Reverend Tanner as opposed to
some other person?

A. Well, he was available for one thing. And I think he
was the first one that I had -- if he had not been able
to, I would have gone on to another person. And that
little sequence in there is something like, you know,
getting to the office about 8:30, learning of this.
Probably making a -- probably within there making a phone
call to affirm the time. Getting to -- and discovering that
I couldn't do it myself. Getting Reverend Tanner because I
know that he only had about fifteen minutes or so to get up
to the Capitol. He said, "I'll just drop everything and
go."

Q. How long did your conversation last with Reverend
Tanner?

A. Oh, it would have been two or three minutes.

Q. And what did you tell Reverend Tanner to say?

A. That -- I can't recall the conversation verbatim.
But the gist of it would have been to ask him if he would

39

go in my behalf to register, in whatever manner he
could, my opposition to this bill. And I know -- I did
know enough, you know, of his position to know that I was
not asking him to do something contrary to his position.
And therefore, I was comfortable in just leaving it in
that way, knowing that if he had the opportunity to speak
that he would make appropriate remarks.

Q. Do you know whether Reverend Tanner ever spoke
to the legislature or at the legislative hearing?

A. I think he never had the opportunity. That was
my understanding that he did not have the opportunity,
though he requested. And from whom he requested, I don't
know. But he did endeavor to get to speak and was told that
there would not be an opportunity for him to speak.

Q That request would have been made when he arrived at
the Capitol?

A. Right. Right.

Q. When did you learn that Reverend Tanner did not get to
speak to the legislative committee?

A. That afternoon sometime. Probably the middle
of the afternoon.

Q. Who did you learn that from?

A. From him.

Q. All right. What did he tell you?

A. He indicated that there was no opportunity given

40

for persons such as himself to speak. That there was
a great deal of confusion and it seemed to be a very
hurried occasion.

Q. What do you mean by the phrase "persons such as
himself"?

A. Persons such as himself speaking? Well, persons
who were there to voice opposition to it. That it was
my recollection that he indicated that there was no one
on that occasion that was given the opportunity to speak
against the bill.

Q. Did he tell you whether or not Representative Wilson
spoke against the bill at that hearing?

A. I don't recall that he indicated that to me.

Q. Did he indicate to you that persons testified in favor
of the bill?

A. The -- you know, this is -- this is a recollection
that I had no idea that I would be asked to call up. And
I frankly cannot recall whether he said -- whether he
said that persons testified in favor of it. His overall
impression to me was that the opportunity for outside
input, that is people who are outside the committee, that
there was very little or no -- well, let me say it this
way. There was virtually no opportunity given for very
much input from anybody except within the committee
itself.

Transcript continued on next page

Deposition of Father Francis Bruce Vawter

                  IN THE UNITED STATES DISTRICT COURT
                          EASTERN DISTRICT OF ARKANSAS
                                   WESTERN DIVISION

REVEREND BILL MC LEAN, et al  )
                                              )
                        Plaintiffs          )
                                              )
                    vs                       )      Civil Action No:
                                              )        LR-C-81-322
BOARD OF EDUCATION, et al     )
                                              )
                        Defendants      )

The deposition of FRANCIS BRUCE VAWTER, called
by the Defendants for examination, taken pursuant to
the provisions of the Federal Rules of Civil
Procedure of the United States District Courts
pertaining to the taking of depositions, taken before
VICTOR J. LA COURSIERE, a Notary Public within and
for the County of Cook, State of Illinois, and a
Certified Shorthand Reporter of said state, taken
at Suite 607, 343 South Dearborn Street, Chicago,
Illinois, on the 21st day of November, A.D., 1981,
at approximately 9:30 a.m.

2

APPEARANCES:

MESSRS. ANTHONY J. SIANO and RALPH J. MARRA, JR.,
Attorneys at Law, of the law firm of,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM,
919 Third Avenue
New York, N. Y. 10022
Phone: (212) 371-6000
Appeared on behalf of the Plaintiffs;

MR. RICK CAMPBELL, Assistant Attorney General,
Trial Division
Justice Building
Little Rock, Arkansas Phone: 501/371-2007
Appeared on behalf of the Defendants

----------------

MR. CAMPBELL: Swear the witness, please.

(WHEREUPON, the witness was sworn
by the Court Reporter)

MR. SIANO: Mr. Campbell, at this time, the
Plaintiffs turn over a response to document request
dated November 13, 1981.

Those documents in the witness's
files which are responsive to the request are limited
in the following way: Those writings of the witness,
which are otherwise published writings and recited
on the curriculum vitae have not been produced
since in some cases the witness may not have copies

3

of the writings themselves, and they are accurately
reported in the C.V.

Furthermore, to the extent that
in this particular case this witness's entire career
is directed toward the topic of religion, generically,
we have produced those documents which are relevant
to the matter of Creation Science Statute in
Arkansas.

And the request is further limited
by Rule 26 in that the lawyers' work product has not
been turned over, and otherwise, the request has been
fully complied with.

MR. CAMPBELL: What would you define lawyers'
work product as?

MR. SIANO: I define lawyers' work product the
same way the Supreme Court has in Upjohn and in the
various cases preceding, and Rule 26 indicates
what trial preparation materials are, and that's the
way we define it.

MR. CAMPBELL: Would you include in that trial
materials or preparation materials prepared by a
witness?

MR. SIANO: To the extent that the materials
demonstrate the operation of the lawyers' view of the

4

case and as otherwise described in 26, we include
those materials.

It will not include materials
within that matters which just happen to be the
operation of the intellect of the witness, if that is
what you're suggesting, to the extent that there is
an interaction between the witness and the lawyer.
That is not a matter of trial strategy that would
be included in my understanding of what a work
product is.

MR. CAMPBELL: With regard to the witness's
writings, would writings--

MR. SIANO: When I said writings earlier and
what's not been turned over, I mean published
writings; so if someone has published a book and
that book is available in the library, it may or may
not be available to the witness. We haven't included
that in what we've turned over, if it's publicly
available; And as a matter of course, these materials
are not available to the witness, and we think that
the request is overly broad in the sense it would
require a witness to comb through his life's work
to find everything he's ever written on the topic
of religion.

5

MR. CAMPBELL: I understand. I am hoping
that the same leeway would be accorded to the
defendants.

MR. SIANO: Again, I don't represent any of
the witnesses other than the witnesses that I
present to you.

I indicated to you this is the
nature of my response to your request for
production as required by the rules.

MR. CAMPBELL: I understand that.

Good morning, Father Vawter.

THE WITNESS: Good morning.

MR. CAMPBELL: My name is Rick Campbell. I
apologize for this dialogue.

THE WITNESS: Not at all.

MR. CAMPBELL: Perhaps this concerns the
legal ramifications or aspects of this case as opposed
to your particular direct testimony.

I represent the State Board of
Education of Arkansas.

As you know, a lawsuit has been
filed challenging the constitutionality of an Act
recently passed by the Arkansaw legislature which
would require the teaching of Creation Science along

6

Evolution Science in the public schools of our state.

You have been listed as a witness
on behalf of the Plaintiffs in this litigation.
Today, I would simply like to ask you a few questions
concerning your background and what your expected
testimony would be at trial.

A deposition is a very normal
procedure in any type of litigation, and, certainly,
we do not view this particular deposition as any
more significant or less significant than any other
case. Hopefully, you will be comfortable with it,
and know that we are not trying to particularly pick
on you.

At any time, if you would like to
take a break or get some water or go to the restroom,
please just feel free to so state, and we will
certainly do that.

7

FRANCIS BRUCE VAWTER,
called as a witness by the Defendants, having been
first duly sworn, was examined and testified as
follows:

DIRECT EXAMINATION

BY: MR. CAMPBELL

Q Give me your full name and address, if you
would?

A Francis Bruce Vawter; **** ***** *******,
*******, ********, *****.

Q Are you a member of any organized religious
faith?

A I am a Roman Catholic priest belonging to
the religious community which is called The Congregation
of the Mission, or more familiarly known as The
Vincentian Fathers.

Q For how long have you been a priest?

A Since 1946.

Q Where are you presently employed?

A DePaul University.

Q In what capacity?

A I am Chairman of the Department of Religious
Studies, and also, Professor in that department.

Q What are your duties as Chairman of the

8

Department of Religious Studies?

A Mainly, the Chairman's job is supposed to
be academic. More and more nowadays, it's becoming
administrative, but, basically, it's to direct the
program; understanding "the program," means in
that context whatever is carried on in the various
departments of the University in directing this,
and getting people assigned to the right places
at the right time so that they don't overlap
in all of that administrative nonsense, and
acquitting yourself of the budgetary responsibilities--
well, it's what you would call a middleclass
manager, I suppose, in any sort of business
operation.

Q What is Religious Studies?

A Well, Religious Studies--we changed that.
We originally began as the Department of Theology
which is a more straightforward term, I suppose.

A few years back, we changed the
Department of Religious Studies because we had--
we changed the name to that, because we had begun
to grow into a broader area than simply theology of
a particular tradition; and since we now encompass
the history of religions, sociology of religion,

9

and philosophy of religion, various things of that
kind, the term, "Religious Studies," is a much more
appropriate one.

It's really the history of mankind's
experience with a religious dimension from the
beginning and what the implications of that are now.

Q Besides the history, sociology, and
philosophy of religion, what other areas would the
Department of Religious Studies include?

A Well, we have a strong concentration in
biblical studies, ethics, and then, the study of
the systematic theology, if you would call it
that. That is the way people have systemized their
thinking about religion through various periods of
time. Those are the three main areas, I would think.

Q You mentioned you were a Professor
in the Department of Religious Studies. What do
you teach?

A Old Testament, almost exclusively.

Q What does the teaching of the Old Testament
include?

A Well, teaching of the Old Testament includes
an awful lot of things. It includes the Old Testament
Books themselves as literature, and it includes the

10

background--historical and ethnological background--
and all of the related disciplines that have in
the last century or so, or two centuries, been
contributing to the scientific study of the
biblical works, such as, archaeology, "epochgraphy,"
and so forth, or the study of ancient writing.

Q What way would science relate to the
study of the Old Testament?

MR. SIANO: Excuse me?

MR. CAMPBELL: Q In what way would science--
you mentioned a moment ago that there was a relation-
ship between science and the Old Testament. In what
way is that brought out in your classes?

THE WITNESS: A No, what I probably said was
scientific study of the--

MR. SIANO: Yes.

THE WITNESS: (Continuing) A I am using that
term in a--not in a technical sense of dealing with
any of the positive sciences, but rather, scientific
meaning that you're working under logical and
empirical controls, that you are not simply fantasizing,
but rather, that you are depending upon the rules
of evidence, and so forth, which I understand to be
a scientific method. Science, as such, would not come

11

into my work unless there were such a thing as some
scientificly established conclusion--science in the
narrow sense here now, the positive sciences--that
would cause me a problem, that would conflict with
what I'm doing; then, I would have to take it into
account; but, otherwise, I have nothing to do directly
with science in that sense.

MR. CAMPBELL: Q Have you ever run across
a situation where science has caused you to
reevaluate or look at an area in your studies?

MR. SIANO: Objection.

MR. CAMPBELL: He mentioned in a way that
science has or might cause him to have to examine a
particular part of his study. I was just asking
him what particular science.

MR. SIANO: If you want to ask him what sciences
first. When I heard the answer, I heard positive
sciences and not focused on a particular one.
Then, I heard your question, and you said, science
without picking one. Maybe you want to pick one and
maybe you don't. but that was the basis for my
objection.

MR. CAMPBELL: Q What sciences--I think you
mentioned archaeology as one, but what sciences would

12

you normally have any type of interaction with
with regard to your studies?

A Well, actually, I don't think archaeology
is any more of a science than biblical exegesis is.
It uses the scientific method, but it boils down to
being an art more than anything else.

But, well, yes, archaeology certainly
would be something that if you take, for example,
something we're not dealing with here and now,
that the Book of Joshua describes the conquest
of a certain place in Palestine, namely, Jericho,
at a certain point of time that we otherwise can
fairly well lock in on as preparing such and such
an occasion, and the archaeologist shows the place
didn't exist at that time, then, you've got a
problem with the Book of Joshua. That's where
it would have some conflict such as that.

Q How would you define the scientific method?

A Scientific method, as I understand it,
is to deal with, first of all, establishing facts
by whatever availability you have to establish the
fact, and, then, to make logical inductions from
those facts to arrive at conclusions and to control
your experimentation. That's what I mean by the

13

process of arriving at the inductive process or
arriving at conclusions; control that by every
available means to insure that it is going to
be objective.

Q Have you taught any other courses besides
the Old Testament at DePaul?

A I've taught general biblical survey
courses, and I've taught some New Testament courses,
particularly, relating to the prior tradition that
underlies the New Testament documents.

Q Obviously, in your teaching the Old Testa-
ment, you would teach about the Book of Genesis. Have
you ever taught a course strictly on the Book of
Genesis?

A Yes, I am concluding one right now; a graduate
course in Genesis, Theology of History.

I taught it, I suppose, practically all
my life as a teacher.

Q Before assuming your duties at DePaul, where
were you employed?

THE WITNESS: Let me refresh my own memory.

MR. SIANO: Mr. Campbell, you have a C.V. in
that file; do you want to take a look at it?

MR. CAMPBELL: Right, I believe I saw it.

14

(WHEREUPON, the document was handed
to the witness)

THE WITNESS: A How many of these appointments
do you want?

Most immediately before coming to DePaul,
I was at Kenrick Theological Seminary in St. Louis;
then, I was in St. Thomas Seminary, in Denver, prior
to that.

Prior to that again, back to Kendrick
Seminary, and that's about the limit of my academic
appointments on a permanent basis.

I've had some summer appointments,
and I have had some visiting professorships, but I have
been at McCormick Theological Seminary in Chicago,
Vanderbilt, Nashville, and also, at the Biblical
Institute in Rome.

Q Were you generally teaching in the same areas
in the Old Testament?

A Generally, yes.

Q Have you ever taught a course specifically
on origins as opposed to the Book of Genesis?

A You mean the origins of the universe and--

Q Yes?

A No, I have never.

15

Q Where did you graduate from high school,
Father Vawter?

A Pascal High School, Fort Worth, Texas.

Q Do you recall studying origins in high
school?

A I don't think so.

Q You don't recall or you don't think you
studied it?

A I do not recall, and I don't think I did.

Q Where did you attend undergraduate school?

A My college you mean?

Q Yes?

A At St. Thomas Seminary in Denver, Colorado.

Q Did you take any science courses in college?

A Yes, we had a course in biology. It's about
the only one I can recall.

Q Did you study origins in your class in
biology?

A Yes, that was part of the course, I'm sure
of that.

Q Do you recall how it was presented by any
chance?

A Well, fairly well, yes. I would think that
I can remember more the person who taught it than I can

16

the actual class presentation, but I would say that
it was presented from an evolutionary standpoint.

Q Was the creation model of origins ever
presented in--

MR. SIANO: I object; I don't know what you
mean by, "creation model."

MR. CAMPBELL: Q Do you understand what I mean
by, "creation of model of origins?"

THE WITNESS: A Actually, no, because, to
my knowledge, that's new terminology.

Q Was any other approach to origins discussed
in the classroom besides the evolution approach?

A I don't know if that's a--mind you, now,
that the place this is being taught--back in the 30s--is
in a Roman Catholic Seminary to educate clergy.

Now, if you want to suggest that there
was any conflict in the mind of people that were
thinking about evolutionary background to the origin
of this all and religion, I assure you there wasn't.

I mean, I don't think the question is--
when you say, "another model or another way of
presenting it," I don't think there was any feeling
on the part of anybody that there was any incompatibility
in presenting it in an evolutionary structure, and at

17

the same time, conceding that the whole thing is
not by random decision, but it was a guided or a
designed thing, and, therefore, it would not be a
question of another model, but rather, evolution
would be considered more of the process by which
this came to be which would not conflict with the
fact it came to be at the behest of a creator.

Q Where did you attend your post-graduate
school?

A In Rome at what is now called the Pontifical
University of St. Thomas, and at the Pontifical
Biblical Institute where I got my doctorate.

Q In your post-graduate education, did you
ever study --or were you ever required to take any
science courses?

A No. I have had no science in my post-
graduate work.

Q What did you receive your doctorate in?

A In sacred scripture at the Biblical Institute,
in the Old Testament, precisely; and the dissertation
was entitled, "Social Justice in the Pre-Exilic
Province."

Q Outside of your receiving your doctorate,
have you received any additional training or schooling?

18

A I had a Fulbright Grand for post-doctoral
research in Germany in 1967-68, and that's the only
formal thing I've done in my post-graduate work.

Q What did you study in Germany?

A I was mainly interested in the New Testa-
ment at that time, but, in general, I simply had
what we conveniently call an academa sabbatical.

Q Are you a member of any professional
associations?

A Oh, yes, goodness knows, far many more
than I am active in. I have a list in my curriculum
here; about ten of them: Catholic Biblical Association;
Society of Biblical Literature; International
Organization for the Study of the Old Testament;
society for Old Testament Study; Catholic Theological
Society; American-Oriental Society; American School
of Oriental Research; C.tholic Commission on Cultural
and Intellectual Affairs; Chicago Society's Society
of Biblical Research, which is meeting today at my
institution; and the Society of New Testament Studies.

Q These societies have generally common
purposes or are there different purposes in each one?

A Well, they're fairly common purposes, yes.
They're all through the scientific study of religion.

19

That would be the common denominator, I would think.

Q Again, when we're talking about the
scientific study of religion, it would just be
utilizing the scientific method?

A Yes.

Q Do you hold a position in any of these
organizations?

A In the past, I have been president of
the Catholic Biblical Association. I have been
a member on the council on the Society of biblical
literature.

At the present time, I am part of the
executive board of the Catholic Biblical Association
still, and that's--I think that would be--yes, I
have been president also of the Chicago Society
of Biblical Research.

Do any of these organizations, to your knowledge,
have a position whether or not Creation Science
should be taught in the public schools?

A To my knowledge, no.

Q Do any of them have a position whether or
not Evolution Science should be taught in public
schools?

MR. SIANO: I object to the use of that phrase,

20

unless you want to define it. Are you using a phrase
that's used in the statute?

MR. CAMPBELL: Yes.

MR. SIANO: All right; ask a specific question.

MR. CAMPBELL: Q Do they have a position of
whether or not Evolutionary Science should be taught
in public schools?

THE WITNESS: A No, there isn't--that really
doesn't fall under the purview of any of these
associations.

Q Are you a member of any other organizations
or societies other than those listed here?

A Professional, you mean?

Q Professional or personal?

A I have been a member of various things at
various times. I am not too sure whether some of
the things, I am still a member or not, such as,
World Federalists, and that sort of thing. I con-
tributed to that. ACLU, at one time, I contributed
to, and the Democratic Party, and so on, but that's
all rather--you couldn't find a doctrinaire pattern,
I don't think.

Q Are you a member of the Society for the
Study of Evolution?

21

A No.

Q Are you a member of the American Association
for the Advancement of Science?

A No.

Q Do you subscribe to any professional
publications?

A Yes, I am the editor of an abstracting or
bibligraphical service which we publish three times
a year of, "Abstractions." As a result of that,
I subscribe to probably about three hundred journals.

Q Do any of these journals concern themselves
with the teaching of Evolution Science in the
classroom--public school classroom?

A Well, they concern themselves with the
question--some of them, yes.

Q And which ones would concern themselves
with the question?

A Generally, what we would call fundamentalists'
publications. Just offhand, I would think--there's
one called, Themelios, and that's a fundamentalist
publication.

There's a journal of Evangelical
Theological Society which is fundamentalist. And
there's a couple from around the world: one in

22

Australia, and one in South Africa, as I recall. I
can't recall--but anyway, those are the ones that
are generally concerned with matters of that nature.
They see from their religious standpoint that there
is a conflict between evolution and the biblical
word, and they have a problem where other people do
not.

Q Do any of the publications have a position
whether or not Evolution Science should be taught?

MR. SIANO: Again, you're using that phrase
as it's used in the statute?

MR. CAMPBELL: Yes, sir.

THE WITNESS: A Specifically, I can't think
of any offhand, but that is a kind of a new vocabulary
talking about Creation Science as opposed to Evolution
Science; that's something I have only encountered in
the last couple years, actually; and I don't know
that that has been represented in the literature that
I've read.

Q Outside of some of the literature that you
mentioned where the issue had been raised, where else
have you encountered Creation Science?

MR. SIANO: I object to the form of the question,
but he can answer it.

23

THE WITNESS: A Only recently, I suppose, when
word got around of their being an issue made of it
in Arkansas and Louisiana. Actually, that's about
the first time that it came home to me that such a
think would have been raised as an issue.

MR. CAMPBELL: Q When did you first get word
of the Arkansas and Louisiana Legislation?

A I can't tell you exactly, but I am sure I
read it in the newspaper, but I couldn't tell you
exactly when.

Q In 1981?

A Probably so, yes.

Q You mentioned earlier that in teaching the
Old Testament and the Book of Genesis, in particular,
the question of origins of the universe, man, life,
is discussed; have you ever had a student ask you
whether or not you saw any conflict between the account
of the origin of the universe as suggested in
Genesis I and II and your religious faith?

A Oh, yes, sure.

Q Obviously, this is the area or your expertise,
but could you generally tell me what your response
would be to a student who made that inquiry?

MR. SIANO: I am going to object to the form

24

of the question. Are you speaking hypothetically
or are you asking for Father Vawter to recapitulate
whatever he might recall in a particular context?

MR. CAMPBELL: Just generally hypothetically.

THE WITNESS: A What I would answer in such
a case?

MR. CAMPBELL: Q Yes?

A That Genesis is not concerned with the
process of how things came to be; that Genesis
is concerned with professing who the author of
creation is; and that the process is something for
us to discover as best we can from the empirical
evidence, whatever it may be, That all of this is
due to a guiding hand or to a benign spirit; that's
the religious message that Genesis wants to transmit,
and, therefore, they're talking about two different
things: science, in that sense, and Genesis.

Q In discussing Genesis in the classroom,
do you specifically talk about Evolution Science or
is it more general, as you suggested a moment ago,
just processes?

A Sometimes specifically, sometimes not.
The course I am teaching right now--the last session
of which would be next Monday--is a--actually, I've

25

taken up that question specifically simply because
of the interest that's been generated in me during
the past several months with regard to this so-called
creationism idea. That would be a specific subject
dealt with. I prayerfully hope they confidently
prepared the person who was supposed to make the
guidance of the seminar. I've given him a good
bibliography that he works on.

Q In discussing Genesis I and II, are there
any particular authorities that you rely upon?

A Yes, all my predecessors and all the
commentators and the accumulated wisdom, such as it
is, that's been amassed in the last couple hundred
years in the scientific study of the scriptures.

Q Are there any particular predecessors
or commentators that you are most in respect of?

A The greatest of all who will probably never
be surpassed is Hermann Gunkel, G-u-n-k-e-l. His
work, for some reason or other, was never translated
into English, but nothing has ever been written that
surpasses it--turn of the century.

Q Of this last century?

A Yes, 1900s; but the most modern commentator
is also German, Klaus Westermann, W-e-s-t-e-r-m-a-n-n,

26

whose commentary is not yet completed. He is still
working on it, but he will be the modern Gunkel, I
suppose.

Q Are there others whose work you parti-
cularly respect?

A Yes, there's a couple of Jewish commen-
tators: Cassuto is one, C-a-s-s-u-t-o, and then,
J-a-k-o-b, "Beno" Jakob. His work was--unfortunately,
I never saw much like--because it's the period just
about the time the Nazis came into Germany, and it
was suppressed. He was a Jewish scholar.

But I could sit here all morning and give
you names of various other commentators on Genesis,
which I have certainly used, but I would say those
are more formative of my immediate thought on
Genesis than anybody else.

Q What was the position of Mr. Gunkel with
regards to the origin of the universe and man?

A I don't suppose he had any on that. He
would be dealing specifically with the literary
forms of Genesis itself as to what they are and what
these chronicles of that sort of thing in Genesis
are trying to communicate. As far as to what the
scientific realities are concerned, I don't think

27

he had any particular views, or probably should say that
he did share the common views of most people, but I
don't think--there's nothing professionally he would
have.

Q What are you talking about when you say
"the common views of most people," what does that
mean?

A "The common views of most people," just like
most people without knowing it are Aristotelian
in their thinking, "Genalt" realism; and most
people without thinking about it much probably
entertain the idea all these scientists can't be
wrong, and it's fairly--the way they tell it is the
way it is, or at least, approximately the way it is,
otherwise, we couldn't have gotten on the moon, and
all that stuff.

Q Do you know whether Mr. Westermann had any
particular opinion on the origin of the universe or
man?

A I don't know of any.

Q What about Mr. Cassuto?

A No.

Q Mr. Jakob?

A No. These men are not scientists. Their

28

(Only the left side Page 28 was copied)

opinion is worth no mo

Q With regard
we just talked about--
your study of their wo
there was a guiding ha
earlier, involved in t
and man?

MR. SIANO; I ob
question. If you want
of the scholarship of
to me to be perhaps a

MR. CAMPBELL: W
back, please?

(WHERE
read b

THE WITNESS: A
could tell or not. Wha
to the best of their ab
author of Genesis was s
agree with what the aut
not, that is--ordinaril
tries to keep that out
does put it in, it's pu
opinion, but particular

29

of the person, theoretically, at least, should be
kept separate from what he is presenting as his
judgement as to the meaning of a given text, unless
he wants to make an "excursis," on it, but I really
cannot--you could not tell, I don't think, from
those people what their personal religious convictions
would be.

Q With regard to their interpretation as
to what the author of Genesis was trying to say about
the origin of the universe and man, is there a general
statement which could summarize those--

A A general statement which could summarize
what?

Q Their feelings about what the author was
trying to say about the origin of the universe?

A In general, I think, setting aside individual
points of specificity, I think you could say they
would be in agreement.

Q With the position you originally talked
about?

A Yes.

Q Have you written any papers, articles, or
books, specifically dealing with Genesis I and II?

A Oh, yes, dealing with Genesis I and II, I've

30

written a couple books. When you say "specifically
dealing with," they're not exclusively dealing with,
but they've included that, certainly.

Q Which books were those?

A The book I wrote back in 1956, I think,
entitled, "The Path through Genesis," -- I think that
was the date of the damned thing -- and then, most
recently, I have updated the book published by
Doubleday in 1977 on Genesis.

Q Have you written any articles concerning
just origins set out in Genesis I and II?

A I probably have, but I don't think I've
done anything specifically on that subject. I brought
it into various generic treatments of various things
like sin, the scriptural idea of sin, and that sort
of thing, but I don't think anything specifically
just dealing with that exclusively. I can't remember
anything that I've done.

"The Ways of God," for example, that
I wrote, the idea of the creative word of God would
be in there, but nothing specifically that I can
recall on Genesis I and II.

Q With regard to sin, which you just mentioned
a moment ago, wouldn't that have to do more with the

31

Fall of Man?

A Yes, probably Genesis III, yes; that would
have been brought in there.

Q Would your opinion on the origin of the
universe be the same as the origin of man, life,
plants, animals?

MR. SIANO: I object to that question. It's
very broad. I am not even sure what that's about,
in what sense?

MR. CAMPBELL: Q Do you understand what I am
asking, Father Vawter?

MR. SIANO: His personal opinion? I don't
know exactly what the content of the question is.
I am having difficulty with it.

MR. CAMPBELL: Q Do you understand what I am
asking?

THE WITNESS: A No; I probably would if you
tell me what you're getting at.

Q You mentioned earlier that Genesis is
concerned with the how or the process as opposed to--

A Not concerned with the process.

Q Excuse me, I'm sorry, it's concerned with--
it's not concerned with the how or the process, but
it is more concerned with the author of creation--

32

A Yes.

Q --what I am asking you is whether or not
that would be your opinion on not only the creation
of man but the creation of the universe and the
creation of plants and animals; do you ever get
involved, in other words, with a process or the how
in your--

A What you're looking for is if there is any
difference in the process by which humankind came
in existence as opposed to a process by which the
rest of creation came?

Q Yes, sir?

A No, I don't think there's any.

Q We have discussed the scientific method of
inquiry; in using the scientific method of inquiry
hypothetically speaking, if a scientist could confirm
your view of origins, would you reject that science?

MR. SIANO: I'm going to object to the question.

First of all, I don't know what science
we're talking about, and I don't know what your view
of origins is in the context of this question,
and you're also asking the witness to speculate.

I think that last part is probably
incurable. You go ahead and try to reframe the question.

33

MR. CAMPBELL: All right.

Q Did you understand what my question was?

THE WITNESS: A No.

It's pretty much the same reasons
that Tony was talking about here. My view of origins
is an ambiguity.

Q What I am really speaking of is again--I'll
be speaking always from the Genesis approach which
you mentioned to me, who the author of creation is
as opposed to the process or the how. I was just
generally trying to summarize what I considered to
be your view of origins, in other words, in that
respect, as to who the author is.

What I was asking is whether or not
if someone hypothetically speaking were utilizing
the scientific method which you already defined
earlier in the deposition?

A Yes, well, I have sort of a philosophical
reluctance to believe that a think like that could
happen. The positive sciences, by definition,
are dealing with the intra mundane. They don't go
beyond it. If they go off beyond it, then, they're
in an area of metaphysics or beyond the scientific;
therefore, philosophically, I doubt that there would

34

be any possibility of such a demonstration.

I come from a religious tradition
which --philosophical religious tradition--which,
actually, since the 13th Century, at least, has
professed that you cannot prove the fact of
creation in time, and that that is a matter that
has to be accepted on faith.

So, I would have a reluctance to
believe that would be possible that that's the--
that would be the way that I would approach the
hypothesis.

Q Philosophically speaking, could you
prove the existence of God outside of the Bible?

A In the sense that people understand God,
I don't think so, no. I think you can prove that
there--or at least, if you cannot prove, you at
least can make it reasonable that there is a design
somewhere, that there is a hand at the tiller,
but in the sense of a Judeao-Christian tradition
of a personal, loving God, no, I don't think so.

Q Obviously, this is the $64,000 question
with regard to religion, but how would you define
God if you had to but a definition there?

A Well, I wouldn't want to add mine to the

35

many terrible ones that have been--

MR. SIANO: Are you asking for Father Vawter's
personal definition? I don't know that he's been
qualified, exactly, by you or by anyone with respect
to this particular question. It's an observation
more than anything else.

MR. CAMPBELL: Q Would your personal opinion
of a definition of God differ from your personal
opinion of Him?

THE WITNESS: A Would my--

Q Professional opinion of God differ from your
personal opinion of who God is?

A No, I don't think so.

Q How would you define God?

A Well, as I said, it's hard to define that
which is so essential, but Paul Tillich, T-i-l-l-i-c-h,
his definition of God was the ground of our being. He
is that which or that who affords a rationale to the
world in which we find ourselves and gives us the
basis for our relation to the universe and to our
fellow beings. Without getting into confessional
language, that's about the best I could do.

Q Very good. Have you ever testified before
in a court of law?

36

A No.

Q Have you ever had your deposition taken
before?

A Yes, sort of. I, in a French court--what
they call the Process Verbale--I was driving down
a narrow street on the French Riviera and pushed a
girl off of her motorcycle, and she had a strawberry
on her hip, and we had to have testimony in court,
but that's it.

I was released without any recrimina-
tions.

Q Father Vawter, I know you have had opportunity
to discuss this case, at least somewhat, with Mr. Siano
and others.

Could you summarize the general subject
matter of your testimony at trial?

A What I understand I am being asked to do
is simply to offer an expert opinion as to what the
Genesis teaching or the Genesis--yes, of teaching
of creation is, and that is a religious profession
which I myself strongly suspect is the sole source
of what is now being called Creationism or--in other
words, this is supposed to support--evidence of science
is supposed to support some particular thesis; that

37

the thesis is supposedly that which is being
extracted from the 1st Chapter of Genesis, and my
opinion is that that thesis has been incorrectly
extracted, and that, therefore, what's being proposed
as Creation Science is really a religious belief
which is being supposedly bolstered by certain
scientific data.

Q Who do you have the opinion that Creation
Science is a religious belief?

A Because, as I understand it, the various
details of it, that is, when they talk about a
creation, and a fairly recent creation--as ions
go in the scientific world--and the worldwide flood
ant that sort of thing, when they put all those
things together, I can't but believe that this is
a reading of the first eleven chapters of Genesis,
and then, it's now being --the thesis is now being
proposed that science will confirm all of this,
but those first eleven chapters of Genesis are
religious doctrine, That's why I feel that is the
hidden agenda of Creationism, as far as I can see it.

Q We were talking earlier about archaeology
and the locations of a particular city. If the Bible
suggested the location of a particular city, would it

38

not be proper for, say, an archaeologist to attempt
to find it at that particular location?

A Sure, in practice, that's what they've
tried to do. It's the same as any other--when
Schleiman (phonetic spelling) discovered Troy, he
didn't go back digging in the backyard of Indiana;
he went to where the Homeric legions said where
Troy was, and he found out not only one Troy, but
he found a whole many Troys; and the same way
with biblical archaeology; they take the indications
from the Bible and look for the--most logically
where it took place that the Bible is telling
where it is. It's an historical source, after all,
in some respects; and then, they can either say that
the Bible was a trustworthy witness here or that
it left them in the lurch when the evidence comes in.

Q If there were such a thing as a creation
scientist--and I am not suggesting that there is--why
would it not be just as valid for him to pick up
different inferences from the Bible and seek to prove
those?

MR. SIANO: I'm going to object. The question
is speculative.

MR. CAMPBELL: I'm asking him--

39

MR. SIANO: No, no; that's a speculative
question; it over-specs, and it's not really
discipline; it's not really anything. First of all,
no such thing as a creation scientist exists, although
that might be a matter of some dispute.

Secondly, I don't know what you're
suggesting this hypothetical scientist is doing
in his hypothetical existence.

I am suggesting to you that you rephrase
the question.

I don't want an answer to a question such
as this cluttering the record.

MR. CAMPBELL: Your objection is noted,
Mr. Siano.

Q Father Vawter, did you understand what
I was asking?

THE WITNESS: A Not really. I don't know
what a creation scientist would be. You mean a person
who believes that--or a scientist who believes in
creation, or a person who believes that creation can
be proved by science, or what?

Q I think creation scientist is a very broad-
term scientist, and as I mentioned, it would be
difficult to say anyone is a creation scientist.

40

If a paleontologist was going to look
at the study of the age of the earth, would it be
just as logical for him to start with some particular
fact in the Bible--and I am not trying to narrow you
down at all--to determine the--

A I see what you're getting at.

MR. SIANO: I'm going to object to the question
again; are you asking method questions now, or what?

MR. CAMPBELL: Q We talked about earlier,
Father Vawter, individuals looking at the Bible,
particularly, for Troy, you would not dig in Indiana;
I am simply asking you whether or not a paleontologist
might look at some notation in the Bible, a historical
fact in the Bible, and seek to prove some particular
theory that he was working on?

MR. SIANO: Are you asking this witness should
a paleontologist be foreclosed from looking at the
Bible? I think that's a very different question
from should an archaeologist start with the Bible
in his studies.

MR. CAMPBELL: Q Father Vawter, do you under-
stand what I am asking?

THE WITNESS: A I think so, yes.

Q Would you answer the question, please, sir?

41

A I don't think he should be foreclosed from--
first of all, if a person starts out with a belief
in a religious fact that is found in the Bible, I
don't see any reason why he should not be--why he
should be inhibited from seeking to establish that as best
as he can from positive empirical evidence, no.

The only thing that I would reserve,
I would think there, is just the limitations of what
the evidence can be. There are certain affirmations
that are made in the biblical record that is simply
not within that gamut of evidentiary procedure.
It's not going to be forthcoming.

Q You mentioned that Creation Science is a
religious belief which is bolstered by scientific
data or seeking to be?

A Seeking to be, yes.

Q What scientific data are you aware of that
is trying to bolster Creation Science?

A Only in a vague way, just a few things
that I've read in passing of trying to convey the
idea that the fossil evidence is of a sudden
explosion into the universe of created things, and
I have no capacity whatsoever for judging the value
of those assertions one way or the other, but that's

42

what I have in mind that they're using argument of
that kind to bolster the notion which they take
essentially from the Bible.

Q In addition to your opinion that Creation
Science is a religious belief which is seeking to
be bolstered by scientific data, will you be
testifying to any other opinion?

MR. SIANO: Other than what he's already
testified to in this deposition?

MR. CAMPBELL: Yes, sir.

MR. SIANO: All right.

THE WITNESS: A No scientific opinion whatsoever.

MR. CAMPBELL: Q Right, but I mean it will
just essentially -- will there be any other opinions
offered from your background from a religious stand-
point other than Creation Science is a religious belief
which is seeking to be bolstered by scientific data?

A No, I cannot--that's about the only area
that I am being asked to speak to, I think, is the
fact that I have a certain acquaintance with the
creation doctrine itself as it is in the Bible, and
what the background of it is in the ancient Near East
and the rest of it. Beyond that, no.

Q What analysis will you be providing to the

43

court on this opinion, or concerning this opinion?

A Analysis precisely of what?

Q Of Creation Science being a religious
belief which is seeking to be bolstered by scientific
data?

A Simply from reading the Act and listening
to the defenses that have been made of it or not
made of it specifically, but I mean, along the same
line of thinking that the people who profess this
are those who share in the Judaeo-Christian tradition
of the creation as described in the --or as they
think is described, at least, in the Book of Genesis,
and as has been traditionally or as they think has
been traditionally interpreted in the Judaeo-Christian
circles, so much so, that it is the given for which
the scientific evidence is supposed to supply the
props.

When the Act speaks about supporting
creation, what is it that it's supporting? It's
supporting a given there, and the given comes out of
the Book of Genesis, which is why I can't understand
why they talk -- well, it's true, you can talk -- they
say that this should be taught without the use of any
religious documents, and so forth, but that's the

44

unspoken document. That "support," there is a key
word; it's a give-away word of what your unmentioned
textbook is which is Genesis I and II, particularly, I.

Q Have you prepared any documents or a report
with regard to --

A With regard to this?

Q Essentially, yes, sir, with regard to
this litigation?

A Only the statement that I sent to Mr. Siano
as a general summary of what my analysis of the Act
was, and I viewed it as an attempt to support a
religious position by alleged scientific evidence.

Q Had you talked to Mr. Siano before you
prepared that report?

A Only by telephone, and he simply asked me--
am I recalling accurately or--

MR. SIANO: I think I came up to see you.

THE WITNESS: (Continuing) A Maybe you did,
that's right, and then, you asked me to prepare it.
I am the worst chronicler of my own life.

Yes, he came out to see me, and asked
me to draw up such a statement.

MR. CAMPBELL: Q When was his visit out there
with you, do you know?

45

A I can tell from the letter which was--

MR. SIANO: I think it was September, early
September.

THE WITNESS: (Continuing) A I believe so,
and I am trying to find the letter itself that I
sent. Maybe I put it in here.

No, somewhere in that time frame, I'm
sure, yes.

MR. SIANO: Yes, it was approximately the second
week in September.

THE WITNESS: Okay. You have the tail end of
it there.

MR. CAMPBELL: Q How long was your visit with
Mr. Siano?

MR. SIANO: You mean Mr. Siano's visit with
Professor Vawter.

THE WITNESS: A Let's see, that's the cabdriver
that let you down in the Loop, and you made your way
north again?

MR. SIANO: That's right.

THE WITNESS: (Continuing) A I suppose what
we were--an hour or so?

MR. SIANO: Closer to two, I think.

THE WITNESS: (Continuing) A All right; I said

46

I'm not a good chronicler.

Couple hours, probably, would be right,
yes.

Q Had you seen a copy of Act 590 of 1981,
State of Arkansaw?

A Yes, that had been sent to me before.

Q What did you tell Mr. Siano at that time
your feelings were about Act 590?

A Well, substantially what I have just told
you, and substantially what I put in my statement
he asked me to draw up.

My initial letter was to--when that
material was sent to me, I said, "I think the
Plaintiffs in the case are on solid ground," but
what this is is an establishment of a religious
point of view--belief--which is, I think they're
on solid ground challenging that as a violation
of the 1st Amendment of the Constitution.

MR. SIANO: Are you finished?

THE WITNESS: Yes.

MR. SIANO: Off the record.

(WHEREUPON, a short discussion
ensued off the record)

MR. CAMPBELL: Back on the record.

47

And why did you feel that Act 590 was an
establishment of religion, as you understand it?

MR. SIANO: Objection, it's been asked and
answered.

If you're asking for reasons other than
the ones he's already articulated, but if you ask him
to articulate the basis for what he's going to
testify again, I think he's already answered those
questions.

MR. CAMPBELL: Q In your answer, you mentioned
a moment ago about the establishment of religion;
I really wanted to know what you consider to be an
establishment of religion?

THE WITNESS: A Well, I don't want to be taken
up on the technicality of the use of the word,
"establishment." As I understand it, from a layman's
point of view, it constitutes the establishment of
a religion in the sense that it violates the 1st
Amendment in the sense that there would be a force of
civil law used to implement the propagation of
specifically a religious belief, and the fact is, a
sectarian belief. Even though it's a large sect,
it would still be sectarian, and that was in violation
of the Constitution as it has been interpreted.

48

MR. SIANO: I'll state for the record, of course,
that Professor Vawter is not a lawyer.

THE WITNESS: You bet you. In fact, I would
like that to be very plain.

MR. CAMPBELL: I have no objection to that,
Father Vawter.

Q You talked about a religious belief
or sectarian belief that may establish a religious
belief or sectarian belief; what religious belief
or sectarian belief do you think that it may
establish?

THE WITNESS: A What we generically describe
as the Judaeo-Christian creation beliefs.

Q And what is that?

A I suppose what the vast majority of the
American people would--that is, those who have any
sense at all of a belief in God would subscribe to
the idea that He is also the Creator God, and,
therefore, the source for the specifics of
what is involved in creation, probably nine
times out of ten would think of the Bible.

That's their background. Not an organized
thing, but simply a cultural belief.

Q How long did you spend preparing the document

49

or the report which you sent to Mr. Siano?

A Oh, not--immediately not very much time.
It was just a summation of my ideas that had been
in my mind, I suppose, for years. It was simply an
immediate response to them.

Q You had this meeting with him in early
September, when did you send in the report?

A Shortly--it must have been within a week
afterwards.

Q Did you send him any other reports or
documents?

A No, I don't think so.

Q How long is that report?

A About a page and a half, I think.

Q Is a copy of that report included in the
document itself which you provided to me this morning?

MR. SIANO: No, it is not.

MR. CAMPBELL: Q Do you have a copy of that
report with you, Father Vawter?

THE WITNESS: A Yes, I do. I have a carbon
copy made of it.

Q Would you provide that to me?

MR. SIANO: I've already told you, Mr. Campbell,
we are retaining things which demonstrated the operation

50

of the lawyer's preparation for trial pursuant to
Rule 26, under claim of work product.

I think your inquiry has clearly
demonstrated in this case that that is exactly the
source of that document which is responsive to my
communications and my explication to Father Vawter
of my view of the case, and it was in response thereto
that generated that.

MR. CAMPBELL: Excuse me, Father Vawter, while
we have a dialogue between us for a moment.

Mr. Siano, I understand your definition
of work product. I will take note of that, and
certainly, it's up to the judge at some later point.

I do think that the work he sent to
you which he described in his testimony about his
immediate thoughts in his mind and have been in his
mind for years, I believe under Rule 26, inasmuch as
Father Vawter is an expert, that we would be entitled
to that information. But certainly, we can leave that
up to the judge at a later time.

MR. SIANO: You can quote me parts of his
testimony, and I can quote you parts of his testimony.
That's not very fruitful use of our time, and I have
not frustrated your inquiry in any respect, and therefore,

Transcript continued on next page

Deposition of George Mish Marsden

                         IN THE UNITED STATES DISTRICT COURT
                                EASTERN DISTRICT OF ARKANSAS
                                        WESTERN DIVISION

REVEREND BILL MC LEAN, et al     )
                                                 )
                         Plaintiffs             )
                                                 )
                      vs                        )
                                                 )      Civil Action No:
BOARD OF EDUCATION, et al        )      LR-C-81-322
                                                 )
                         Defendants        )

The deposition of GEORGE MISH MARSDEN,
called by the Defendants for examination, taken
pursuant to the provisions of the Federal Rules of
Civil Procedure of the United States District Courts
pertaining to the taking of depositions, taken before
VICTOR J. LA COURSIERE, a Notary Public within and
for the County of Cook, State of Illinois, and a
Certified Shorthand Reporter of said state, taken
at Suite 607, 343 South Dearborn Street, Chicago,
Illinois, on the 21st day of November, A.D., 1981,
at approximately 1:30, p.m.

2

APPEARANCES:

MESSRS. ANTHONY J. SIANO and RALPH J. MARRA, JR.
Attorneys at Law, of the law firm of,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM,
919 Third Avenue
New York, N. Y. 10022 Ph: (212) 371-6000
Appeared on behalf of the Plaintiffs;

MR. RICK CAMPBELL, Assistant Attorney General,
Trial Division
Justice Building
Little Rock, Arkansas Phone: 501/371-2007
Appeared on behalf of the Defendants

-----------------------

MR. SIANO: Let the record show this
deposition is taken for the purposes of discovery;
all objections subject to the form are preserved
until the time of trial; the witness reserves the
right to read and sign the deposition; we waive
filing; and we are willing to waive signing in front
of this Notary Public, is that right?

MR. CAMPBELL: Yes.

MR. SIANO: Also, at this time, we are
turning over documents in response to the State of
Arkansas document request, dated November 13, 1981;
and the same observations are made as this morning
to Father Vawter's production of documents -- off the

3

record.

(WHEREUPON, discussion ensued
off the record)

MR. CAMPBELL: Dr. Marsden, my name is Rick
Campbell; I am an Assistant Attorney General represen-
ting the Board of Education, State of Arkansas, in
this litigation.

As you know, the Arkansas General Assembly
passed what has been referred to as Act 590 of 1981,
which requires the teaching of Creation Science
along with Evolution Science in the public schools
in the State of Arkansas.

The Plaintiffs in this action have listed
you as a witness on their behalf in this litigation;
I am simply here today to ask you a few questions
concerning your background and your probably testimony
at trial.

If any time you need to take a break or
go to the restroom or would like some coffee, let me
know, and we can take a break for that purpose.

4

GEORGE MISH MARSDEN,
called as a witness by the Plaintiffs, having been
first duly sworn, was examined and testified as
follows:

CROSS-EXAMINATION
BY: MR. CAMPBELL

Q Would you please state your full name
and address for the record?

A George Mish Marsden; and my address is
**** ****** *********, ***** ******, ********.

Q Are you married?

A Yes.

Q Do you have any children?

A Two children.

Q Are they in school?

A Yes.

Q Where are they enrolled?

A They're enrolled at Oakdale Christian
School.

Q Where is Oakdale Christian School?

A In Grand Rapids, Michigan.

Q Is that -- what grades are they in?

A Grade 6 and 4.

5

Q Do you know whether or not they have
studied the subject of origins in their class work?

A I don't know in any detail whether they
have. I am not very clear on what they've learned
on that at this point.

Q I understand.

MR. SIANO: Some point along the line, I am
going to object to relevancy; we are going pretty far
afield.

MR. CAMPBELL: I understand.

Q Are you a member of an organized
religious faith?

THE WITNESS: A Yes; I am a member of the
Christian Reform Church.

Q Would you describe what the Christian
Reform Church is?

A Christian Reform Church is a -- well,
it's very much like the Presbyterian Church of Dutch
origin. It's a creedal denomination whose doctrines
are officially based on several reformation creeds.
It's a church of maybe 250,000 members in the United
States and Canada.

Q Do you know any of the creeds of the church
that you could--

6

A Well, the three--what are called the three
forms of unity which is the names of the creeds are
the Heidelberg Catechism, the Beltic Confession, and
the Canons of Dork; they are essentially Calvanistic
creeds. (Phonetic spellings)

Q How long have you been a member of the
Christian Reform Church?

A About 12 years.

Q And prior to that?

A I was a member of the Orthodox Presbyterian
Church.

Q Does the Christian Reform Church have a
position on the origin of the universe?

A I don't know.

Q Would the church have a position on the
origin of man?

A I don't know what is said at the church.

Q Have you studied the origin of the universe
in your church?

A I haven't studied it in any formal sense.

Q Has it been discussed?

A I think so, yes.

MR. SIANO: Mr. Campbell, I would like to renew
the objection I made earlier today in connection with

7

personal positions on these topics. I have let you
inquire quite readily today, but you might want to
trade that and get to the issues of the case.

MR. CAMPBELL: Professor Marsden, periodically
throughout your deposition, there will be some verbal
exchange between Mr. Siano and myself. Certainly, it
has nothing to do with you personally, so I don't
want you to take it that way.

THE WITNESS: I understand.

MR. CAMPBELL: Q Do you recall any specific
discussions concerning the origin of the universe?

THE WITNESS: A Nothing specific. It's a
subject that from time to time is discussed in various
ways.

It would be hard to say that there's
one certain typical Christian Reform discussion of it.
It also would be hard to say what the boundaries of
the church are.

I mean, I have talked to Christian
Reform people about the subject from time to time, but
it would be hard to specify any one particular time.

Q Where are you presently employed?

A At Calvin College, Grand Rapids, Michigan.

8

Q What type of institution is Calvin College?

A Calvin College is a college of the Christian
Reform Church. It's run by a Board of Trustees who
are subordinate to the synod of the Christian Reform
Church, which is the highest ruling body of the church,
and it is supported with church funds.

Q In what capacity are you employed there?

A I am a Professor of History.

Q Any particular courses in History that
you teach?

A I teach American Intellectual History;
American Religious History; American Colonial History;
I teach a course in Christianity Learning and Culture;
and I teach a History of Western Civilization.

Q What is American Intellectual History?

A It's a history of the development of
American thought in its cultural relationships.

Q In your American Religions History class,
do you ever discuss the subject of origins?

A Yes.

Q In what manner?

A Well, I talk about the Scope Trial, for
instance; and I report what happened at the Scope

9

Trial; and I am a student of American Fundamentalism,
so I give some background for the development of
understanding fundamentalist views on that.

Q Prior to your employment at Calvin
College, where were you employed?

A My only employment was Assistant Instruc-
tor at Yale University.

Q Did you have teaching responsibilities
in that capacity?

A Yes, I led discussions, actually.

Q I notice that you received the Younger
Humanist Fellowship from the National Endowment of
Humanities from 1971-72?

A That's correct.

Q What is that?

A The National Endowment for the Humanities
grant fellowships for research to scholars, and they
provide roughly enough funds to take a year off to
research a particular topic.

Q In this instance, you were studying Funda-
mentalism in American culture?

A That's correct.

Q What is the National Endowment for the
Humanities?

10

A It's a government-financed endowment
to support scholarships.

Q Where did you graduate from high school?

A Middletown High School, Middletown,
Pennsylvania.

Q Did you take any science courses when you
were there?

A Yes.

Q Do you recall which ones?

A Yes, I took general science; I took biology;
I took physics; and I took chemistry.

Q Was the subject of origins ever brought
up in any of these classes?

A Yes.

Q Do you recall in what way?

A Not very well, I couldn't characterize
it in any interesting way.

Q Act 590 defines Creation Science and
Evolution Science. As Evolution Science is defined
in Act 590, was Evolution Science discussed in your
high school curriculum?

MR. SIANO: Before going further, I would
like him to have the Act before him.

MR. CAMPBELL: Okay; look at that definition.

11

THE WITNESS: A Yes, I note the definition.
I recall something on that order,
yes, was discussed.

MR. CAMPBELL: Q Was Creation Science as it
is defined in that Act 590 ever discussed in your high
school curriculum?

A I think so. It was discussed in class--I'm
not sure. It might have been brought up by the students,
for instance.

Well, now, I should correct that.
No, it wasn't, not in the sense that it is in Act 590.

Q What do you mean, "Not in the sense that
it is in Act 590?"

A Well, in the sense that the subject of
creation was discussed. It was discussed in the
sense that creation was defined in Act 590; but that
particular brand of creationism was not discussed.

Q What brand was? I am just trying to get
a feel for it.

A Well, in the general sense that there
might be a Creator, but if you have all those demands
like catastrophism, that sort of thing, as far as I
know, was not even known at that time.

12

Q Were did you attend college?

A Haverford College.

Q Where is that located?

A Haverford, Pennsylvania.

Q Did you take any science courses at
Haverford?

A Well, my science requirement was fulfilled
in clinical psychology--no, laboratory psychology
courses is what it should be called.

Q After college, you went to the seminary?

A Correct.

Q Which one was that?

A Westminster Theological Seminary, in
Philadelphia.

Q While at Westminster, was the subject
of origins ever discussed?

A Yes.

Q In what way?

A Again, it's one of those questions that's
very hard to characterize, because it was discussed
in a variety of ways, but more specifically, it was
discussed in several courses in the Old Testament,
and questions as to how the Old Testament should be

13

understood. Primarily, it was the questions that
were discussed--not so much--well, that in relation to
the science questions, but the questions were more
questions of Biblical interpretation.

Q Was the subject of evolution ever
mentioned?

A Yes.

Q Would it be fair to say--and I am not
trying to put words in your mouth at all--but if
we're talking about evolution, would its counterpart
be creation or what would be the counterpart of
evolution in your mind?

MR. SIANO: Objection. I don't know what
counterpart means in that context.

MR. CAMPBELL: Q Well, is there an opposite,
in your own mind, to evolution?

THE WITNESS: A No. There is certainly nothing
entailed in evolution that excludes creationism
logically, nor does creationism logically exclude
evolution.

Q So any discussion of origins would include,
in your mind, or could include a discussion of both
creationism and evolution?

A Yes, I'd say any discussion would include.

14

Q After you left Westminster, where did
you attend school?

A I finished my work--my PHD work at
Yale University.

Q Did you go to a different school after
Westminster or--

A What happened was I went -- out of college,
I went to Westminster for one year; went to Yale for
one year, then, back to Westminster for two years,
and I went back to Yale for two years.

Q What did you receive your PHD in at
Yale?

A American Studies.

Q What is that, generally?

A It's basically the study of American
History, and Culture, and Literature, but primarily,
History. My emphasis was American Religious History.

Q Have you received any other training or
attended any other unversities outside of those you
have just mentioned?

A I don't think so.

Q Are you licensed to teach at Calvin College?

A Licensed, no.

15

Q Are you a member of any professional
societies?

A I am a member of the American Historical
Association; American Society of Church History;
and Conference on Faith and History.

Q What was the second one you named; I'm
sorry?

A American Society for Church History.

Q How long have you been a member of the
American Historical Association?

A I guess since about 1963.

Q What is the purpose of that organization?

A To promote the study of American History.

Q How long have you been a member of
the American Society for Church History?

A About since 1963.

Q What is the purpose of that organization?

A To promote the study of American Church
History.

Q How long have you been a member of the
Conference of Faith and History?

A Since about 1967, I guess.

Q What is the purpose of that association?

A It's an organization of historians who

16

characterize themselves as Evangelical, primarily.

Q You would characterize yourself as
Evangelical?

A Yes.

Q What is an Evangelical?

A Evangelical is -- well, as I am using it
here would be basically someone who regards the Bible
as an authority and emphasizes the work of Christ
for the salvation of humanity and, also, emphasizes--
well, i think that just that would be enough to
get Evangelical, moreorless. I could refine that if
it makes any difference.

Q You said that it somewhat regards the
Bible as an authority; what does that mean; authority
for what?

A Authority for faith in practice; that
the Bible is the best guide that we have to God's
Will for humanity.

Q Do you hold a position in any of these
organizations?

A No.

Q Have you ever held one?

A No.

Q In light of the controversy which surrounds

17

Act 590 in academic and professional circles, have
any of the organizations which you belong to taken
any position on whether or not Creation Science,
as it is defined in 590, should be taught in the
public schools?

MR. SIANO: I am going to object to the
predicate portion of the question. You can answer
the question whether any organizations you belong
to have taken a position without reference to
whether you understand or appreciate whatever the
controversy is.

THE WITNESS: A The answer is no.

MR. CAMPBELL: Q Are you a member of the
American Civil Liberties Union?

A No.

Q Are you a member of the Society for the
Study of Evolution?

A No.

Q Are you a member of the American Society
for the Advancement of Science?

A No.

Q Do you subscribe to any professional
publications?

A Yes; to the American Historical Review;

18

PAGE IS MISSING

19

Q Do you recall the names of any of those
organizations which have sent you this material?

A No, I don't recall any, really.

Q Are you on the mailing list of the
Institute for Creation Science?

A I don't think so.

Q How about the Creation Research Society?

A I don't think so.

Q You mentioned that in your American
Religious History course that you had discussed
the subject of origins there?

A Yes.

Q Particularly, as it related to the
Scope Trial?

A Yes.

Q Did you ever go into the merits of
evolution in any of these discussions?

MR. SIANO: I don't understand the question.

THE WITNESS: I don't either, clearly.

MR. SIANO: Are you asking, "Professor
Marsden, do you think evolution is a good idea?" as
if you could stop that theory?

MR. CAMPBELL: Q I mean, was there a dis-
cussion -- was there ever a discussion in a class of

20

evolution inconsistent, Dr. Marsden, with, "What
I have always been taught as--?"

THE WITNESS: A Yes, I'm sure that's come
up; sure.

Q Without thinking of a particular conver-
sation you may have had with someone, do you recall
generally what your response would be if someone
had phrased that type of question to you?

A Well, I think it depends on what you mean
by evolution. Biological evolution comes in many
varieties; and some varieties are theistic and
pro-creationist; and some are non-theistic
and anti-creationist; of course, it makes a big
different which one you're talking about.

Q What is a theistic evolutionist?

A Well, there are a variety of theistic
evolutionists, but, it's basically someone who
says that the evolution of one species to another
might well be God's way of creating.

Q What would be a non-theistic evolutionist?

A A non-theistic evolutionist would say
that evolutionary theory excludes any supernatural
or providential control over the processes.

Q In discussing theistic evolution, had you

21

relied upon any particular authorities that would
define what that is or how that would work?

A Well, I read lots of things about it;
it's a subject that's been discussed in many, many
varieties over the years; so it would be hard to
say that there is any one authority that I'd have
depended on in that subject.

Q Is there any one authority more than any
other you would respect or look to for guidance
in that area?

A Not that I can think of. I studied the
whole history of that subject; there's a vast number
of things that has been written on the subject.

Q Who would individuals studying the same
areas that you studied look to as leading authorities
in this area? I am not saying any one would be any--

A When you say "this area," what area do
you mean?

Q Theistic evolution.

A I studied the history of it. For instance,
there's a good history that just came out of Cambridge
University Press by a man named James Moore, called
the Post-Darwinian Controversy in England and America
from 1865 to 1900. That describes in great detail the

22

many ways in which Christians accommodated themselves
to Darwinism.

Q Are there particular authorities which
you have read which would discuss non-theistic
evolution?

MR. SIANO: For the record, Professor Marsden
talked about the context in which he has studied
this doctrine from an historical perspective; your
questions appear to me to be directed more to
the substantive scientific approach.

MR. CAMPBELL: I don't mean to imply that.

Q Generally, if you're discussing it
from an historical standpoint, would you look to
a certain authority or authorities, and say, "This
gives me my perspective in what these issues are
involved here?"

THE WITNESS: A Non-theistic evolution now,
no--I mean, there's not one that stands out that
would be the thing that people took to in that area.

Again, there's a whole spectrum of
positions, and it's hard to single one, and say, "This is
theistic evolution; this is non-theistic," because
within those, there's lots of varieties.

Q That intrigues me. What different varieties

23

would there be in theistic evolution?

A Well, as I say, there's a spectrum of
beliefs; for instance, there are--one of the
early theistic evolutionists is "Ether"(phonetic) Gray,
Evangelical Professor at Harvard, in the 1860s,
and corresponded with Darwin.

He defended Darwin's views in America,
accepted natural selection, but said it was all done
in god's providential care. There was a purpose and
direction in it. That would be a Darwinistic-
theistic evolutionist.

Now, there can be like a "Neal N.
Marthian" (phonetic) version of evolution which is
some other theory of why species change, basically,
from acquiring -- so there are fusions of Christian
teaching with almost any theory of why evolutionary
development or how it takes place that comes down
the line.

There have been Christians who have said,
"This is compatible with Christian teaching, Biblical
teaching, for reasons X-Y-Z."

You have a whole spectrum of people who
say that man evolved from lower species; and people
who say there's evolution among species but doesn't

24

carry up to man.

Some have a more limited version
of change, and so forth.

MR. SIANO: Off the record.

(WHEREUPON, discussion ensued off
the record)

MR. SIANO: Back on the record.

MR. CAMPBELL: Q Dr. Marsden, have you ever
written any papers or articles or books on the
subject of origins?

THE WITNESS: A I've written a book called
Fundamentalism in American Culture, in which I
discussed the science-religion in late 19th and early
20th Century.

I've also written some articles
that alluded to that whole problem of Christianity
and Christian response to Darwinism.

Q Do you recall the names of those articles?

A In none of these is the subject discussed
very sensitively. This last article on the vitae
here, "Everyone wants to be His Own Interpreter:
the Bible, Science, and Authority, in mid-19th Century
America," I talk mainly about pre-Darwinian in

25

response to science; then, I end up mentioning some-
thing about the Darwinist controversy.

I don't think there is anything
that really deals with it very extensively. Since
this case came up, I've been working on that
subject, and I've been working on an article on
that subject.

Q Obviously, you haven't completed the
work on the article, but can you tell us the scope
of the article?

A It's basically repeating things that I
said in my book; and also, putting that together,
some things I talked about, "19th Century Evangelical
Views of Science before Darwinism came along,"
which was briefly that they believed that science
was the best friend of Christianty, and far from
being a warfare between science and religion, they
thought the two supported each other; and basically,
what I say in the articles and in my book when I
talk about the subject is that Darwinism came
as a blow to that set of assumptions. One of the
assumptions was that science--modern science--
supported the argument from design. That is, the
design in the universe was one of the proofs of God.

26

And here, Darwinism came along and
presented another plausible interpretation of how
the design got there.

And so, Evangelicals were not well
prepared to deal with that. Intellectually, they
had accepted science so fully that they didn't have
a way to critique Darwinism and look at its first
principle; so there was a tendency to go to
extreme solutions; and there are some schools of
thought that discredit Darwinism entirely.

Q As a religious historian, that would be
a fair characterization of your--

A Or historian of religion, and religious
historian, too, for that matter.

Q As an historian of religion, do you have
an opinion as to the origin of the universe?

MR. SIANO: I am going to object to that.
That question doesn't follow from the premise
that's established. I don't know whether he qualifies
as an expert with regard to origins, as an expert
in that sense.

MR. CAMPBELL: I am not trying to draw from
your expert opinion on whatever your expertise would
be in. I am not going to try to define that at this

27

point.

Q All I'm trying to say is as an historian
of religion--or is it a fair question--I can even
ask you that: Would a religious historian have
an opinion on the origin of the universe?

THE WITNESS: A I have an opinion, not
strictly because I'm a religious historian.

Q What is your opinion?

A I believe that God created the universe.
How he did it, I am not really in a position to say.

Q I understand.

Would that be the same for the
creation of man and life on the earth?

A Yes.

Q I understand you are not a scientist. From
what you know about general science, do you think
that science precludes the origin of the universe
and man and life as you just described it?

A That science does?

Q Yes?

A I don't understand that exactly, but no,
I don't see how it could preclude it.

Q The Plaintiffs have again listed you as a

28

witness in this case; do you know at this point in
time what the general subject matter of your testimony
at trial will be?

A I think it will be essentially on the
History of fundamentalism in America.

Q Would there be any particular facts or
opinions that you will be seeking to present to the
court concerning the history of fundamentalism in
America?

MR. SIANO: You mean the substance of his
testimony?

MR. CAMPBELL: Yes, sir.

THE WITNESS: A Well, maybe you want to
phrase that again, if that's what you want.

MR. SIANO: Why don't you ask him what the
substance of his testimony will be?

MR. CAMPBELL: Q Do you know at this time
more of the details of what you will be discussing
with regard to the history of fundamentalism in
America?

THE WITNESS: A Basically, just to say that
fundamentalism is a movement that has been developing
in America since at least the 19th Century.

29

I studied the period mainly up to
1925 or 1930, and I guess important to that is my
definition of fundamentalism, which is militantly
and anti-modernist Evangelical protestantism;
and fundamentalists emphasize the authority of
the Bible, typically emphasize the literal inter-
pretation of the Bible and certain fundamental
doctrines that they consider to be tests of the
Christian faith. For instance, the substitutionary
atonement of Jesus or His resurrection from the dead.

And fundamentalism arose as a
coalition of people from various groups, mainly,
protestant, who were alarmed for one reason or
other at the trend of secularization in the culture
or within the churches themselves, and it's a
militant opposition to those, and becomes by 1920
quite an identifiable movement with a name.

Q I will ask you to define fundamentalism?

A I think I just did.

Q Excuse me, go ahead and finish.

A In the last statement, that was what I
was trying to do, and say it's militantly--and
whatever I said--anti-modernist Evangelical protestan-
tism.

30

Q Would you say that fundamentalism, as
you've just defined it, has stayed the same from
its beginning--and I realize you can't give a precise
date on this--until the present day?

A Some elements have stayed the same, and
some have changed to some degree. It's a coalition
of various movements, so you can't nail it down
quite as precisely as you could, say, the Mormons.

Q All right; would it be fair to character-
ize fundamentalism as it originally existed as
traditional fundamentalism, and the fundamentalism
in which the elements had changed, which you just
mentioned a moment ago?

A No, that's not what I meant. I meant--
see, by the definition of fundamentalism as militant,
there are some people who become militant, and then,
become less militant. You can be sort of more or
less fundamentalist, and not being a religious
movement that has a denomination or organizational--
one organizational structure, it's not always clear
when people are in and out so you might have more--
for instance, it used to be there were more Presby-
terians who were fundamentalist than there are today;
but what a fundamentalist is has a fair amount of

31

continuity in it in both times, so there was some
change there because of some continuity; but there's
an identifiable movement that you can say, "This
movement has direct continuity with--fundamentalism
of today has direct continuity with what was happening
in, say, 1925."

Q In what respects is that true?

A Well, the militant opposition to modernism,
or now, more often called secular humanism, though
that was true in the 1920s, too. Sometimes it's re-
ferred to as secular humanism. There's continuity.
There's continuity in the opposition to biological
evolution.

There's some discontinuity there, too,
but there's enough continuity to say, "This is an
extension of the same movement, or the same moved."

Q What authority will you be principally
relying upon in testifying as to the history of
fundamentalism in America?

A That's hard to state precisely. As I
said, I've researched that for ten years; I have
file cabinets filled with things, and that's just
a distillation of libraries of things that have gone
through one way or another.

32

Q Were there others in the field before
yourself who attempted to--

A Yes.

Q Who were some of those individuals?

A Ernest Sandeen, S-a-n-d-e-e-n, McAlister
College; C. Allyn Russell, Boston University;
George Dower (phonetic spelling), Bob Jones Univer-
sity; those are the main ones that I recall offhand.
There might be some other important ones.

Q How will you relate the history of
fundamentalism in America to Act 590 of 1981?

A Well, Act 590 sounds very much like a
certain species of fundamentalist document. It's
not a product exclusively of fundamentalists,
but it's obviously influenced by fundamentalism
or by the source of things which are typical of
fundamentalists; and particularly, for instance,
Act 590 reflects a literal interpretation of Genesis I,
and in some degree or other, literalness has been
characteristic of fundamentalism; and Act 590 also
reflects the fundamentalists' tendency to equate
evolution with an atheistic-naturalistic evolution
as opposed to evolution that would include any room
for theism or providence.

33

That's been a tendency of fundamentalism
and a growing tendency of fundamentalism to make that
equation.

Q When you said that Act 590 sounds like a
certain species of fundamentalism, which species
are you referring to?

A A particularly literalistic species is
that fundamentalists virtually all tend to be
Biblical literalists, but there can be degrees of
literalism, and this degree of literalism is one
in which the days of Genesis I appear to be 24-hour
days; at least, the conclusion that the earth
has to be relatively young seems to come from that;
and that's a kind of fundamentalism.

There are some other fundamentalists
who might have longer days, and therefore, have an
older--like the anti-evolutionists--but those sorts
of fundamentalists are not--don't seem to be represented
quite as well in Act 590.

Q Do these different species of fundamentalism
have names, or do they just--

A No.

Q One can never evolve into a different type?

34

MR. SIANO: You probably should use the word,
"kind."

THE WITNESS: A They do change at times.

MR. CAMPBELL: Q If you had to summarize--
and perhaps you mentioned it--but if you would have
to summarize your testimony at trial, what would that
be today?

A It's more or less along the line of what
I just said, that I would describe the history of
fundamentalism, that there is such a movement, but
I don't think it's a matter of dispute; and that
this movement has long included among its concerns--
and tack on biological evolution--and those sorts of
concerns are reflected in Act 590, I would say.

Q Have you prepared a document or report
of any type concerning your opinion in this case?

A Yes, I wrote up a little statement on
fundamentalism, and I sent it to the lawyers here;
and then, they sent back a witness sheet, and I sent
back some amendments to that witness sheet.

Q When was that?

A Within the last month, I would say.

Q How long of a document is the document

35

prepared on fundamentalism?

A It's six or seven pages.

Q Have you prepared any other documents or
reports concerning fundamentalism and the subject
matter of your testimony at trial?

A Well, yes; as I mentioned before, I'm
working on an article on fundamentalists' views
of science that I have. It's not completed yet.

Q Have you prepared any other document
which you provided Mr. Siano or any other attorneys
in the case?

A He's seen the draft of that article which
I just mentioned.

MR. SIANO: For the record, as I stated, it's
in the pile of documents there that have been
produced in this case, as is the report that Professor
Marsden described.

Off the record.

(WHEREUPON, discussion ensued
off the record)

MR. CAMPBELL: Back on the record.

Q Professor Marsden, I notice in some of
the documents that you produced today, there is a
number of articles from Arkansas newspapers; when did

36

you get those?

A They were sent to me by Mr. Siano.

Q Outside of the documents which we
were referring to, a moment ago, on fundamentalism
and the new article that you're preparing at the
present time--a draft of that--have you prepared
any other report for purposes of this litigation?

A No, I don't think so.

Q Are you planning at this time to present
any--or to prepare any exhibits for your presentation
at the trial?

A No. Not that I plan to.

MR. CAMPBELL: Off the record for a moment.

(WHEREUPON, discussion ensued
off the record)

MR. CAMPBELL: Back on the record.

Q Dr. Marsden, have you had an opportunity
to read Act 590 of 1981?

THE WITNESS: A Yes.

Q When was the first time that you read it?

A I think around early September.

Q How did you receive it?

A How did I receive it, and what was my opinion
of it--oh, where did I get it from--Mr. Siano sent it to

37

me.

Q When was the last time you read the bill?

A I read parts of it last night.

Q Professor, to refresh your recollection
for a moment--

A Sure. Is there a copy of this that belongs
to me?

MR. SIANO: What, the Act?

THE WITNESS: Yes.

MR. SIANO: I think it's probably in what
he shuffled up there; It's in back of the complaint.
You will get it back.

MR. CAMPBELL: Q What does balance treatment
mean to you?

MR. SIANO: I object. It's irrelevant.
It's asking for a personal view, but you may answer.

THE WITNESS: A You mean as it appears in the
Act?

MR. CAMPBELL: Q Yes, sir.

A Well, it says in the Act somewhere what
it means, I think. Essentially, what balance treatment
means in the Act is what it means in the Act, but I
interpret it as meaning that Evolution Science so-
called and Creation Science so-called would receive,

38

over the long-haul, roughly equal treatment if either
one were to be treated.

Q You notice in Section 2, Act 590, the
statement, "Prohibition against religious instruction, "
what does that mean to you?

MR. SIANO: I'll object to personal views,
but I'll let him answer.

THE WITNESS: A Well, it means to me that
there's an attempt here to get around the fact that
religious instruction is entailed by teaching Creation
Science; and it's entailed just by the fact that
the word "creation" entails the Creator, and the
belief in a Creator is a religious view.

What it means would be that there
would be an attempt to suppress what is the real
origin of this model.

Q But if you heard the phrase, "Prohibition
against religious instruction," how would you take
that to mean?

MR. SIANO: Objection; in what context do you
mean; just if somebody walks up to you on the street
and would ask that, is that what you mean?

MR. CAMPBELL: Q Somebody walked up to you
on the street, and asked you that?

39

MR. SIANO: I don't know what the relevance
of that is. It's either Act 590 or it's nothing
in this case. I am going to object to the question.
It's really very far afield.

MR. CAMPBELL: You may answer the question.

THE WITNESS: I may answer or--

MR. CAMPBELL: Yes.

MR. SIANO: If you can, go right ahead.

THE WITNESS: A Oh, sure, I would say it
prohibits wrongly-interpreted sectarian teachings.

MR. CAMPBELL: Q What are sectarian teachings?

A Teachings that are peculiar to some
religious group or groups. I think that's what the
Act means by it.

Q Turning to Section 4A of Act 590, there is
a definition of Creation Science; reading Section 4A,
it states "Creation Science means the scientific
evidence is creation and inferences from those
scientific evidences; Creation Science includes
the scientific evidences and related inferences
that indicate," and then, it lists six different items.

I would like you to go with me through
these six different items, and to tell me, if you can,
which of these items, if any, are consistent with a

40

fundamentalist viewpoint, if that would be a correct
expression of a fundamentalist.

First, there is "the sudden creation
of the universe, energy, and light, from nothing?"

A That is consistent with the fundamentalist
viewpoint.

Q And on what basis do you make that statement?

A Fundamentlists' reading of the Bible--
of Genesis I--say that the Bible teaches that the
earth was created in one moment. At least, they used
to say such a thing.

Q And using your definition--one part of
your definition of a fundamentalist being a Biblical
literalist, then, you're saying that this particular
statement would be consistent?

A It would be consistent with that kind of
Biblical literalism, yes.

Q Two,"the insufficiency of mutation and
the natural selection in bringing about development
of all living kinds from a single organism?"

A That's also consistent. They're all
consistent for moreorless the same reasons.

Q And those same reasons being again--we'll
save going through all six of them?

41

A Biblical literalism; an interpretation
of the Bible, literalism.

Q Are there fundamentalists--and this is
one reason I was having you define fundamentalism
for me in some detail earlier--are there fundamentalists
who do not hold, say, these six items as part of their
beliefs?

A Yes.

Q Are there any of these items which are
more generally a fallout of a fundamentalist's view-
point than any others?

A "Fallout of," you mean some fundamentalists
would not hold and some would?

Q Right.

A 5 and 6; in the history of fundalmentalism,
particularly, there have been fundamentalists who
didn't hold these views.

Q 5, for the record, is an explanation of
the earth's geology of catastrophism, including the
occurrence of worldwide flood; and 6, is relatively
a recent conception of the earth and living kinds.

A moment ago, you mentioned that
a Creator was an inherently religious concept, I
believe--I don't want to put words in your mouth--but

42

was that correct, or is that not correct?

If it's not, I can just ask you this:
Is the existence of a creator a religious concept?

MR. SIANO: Of course, I object; are you
asking within the limitation of his expertise, or
in his personal view?

THE WITNESS: A. I am inclined to say it was
a religious concept, yes.

MR. CAMPBELL: Q Do you know of any religions
where there is no mention of a creator?

A Yes.

Q What are some of those?

A Well, let's put it this way: I am hesitant,
without that being in my area of expertise, to
just say, but it certainly--I am sure there are
religions in which there is no mention of a creator.
But I don't--I guess I'd want to check my facts
before I name them.

Q Okay, from your examination of Act 509,
do you see anything in there which would prohibit
a teacher from expressing his or her professional
opinion as to the relative merits or demerits of
either of the two models that are set out in the Act?

A I think I'd have to read it over again to

43

be sure on that question.

I don't know. It's a matter of fact
that -- I could look it up or not. I am not sure
what it says on that.

Q I wish you would take a look at it,
because that's going to be an issue.

A All right.

MR. SIANO: Ask the question again.

MR. CAMPBELL: Q Just whether or not you
think there is anything in the Act which would prohibit
a teacher from expressing his or her professional
opinion as to the relative merits or demerits of
either model of origins?

MR. SIANO: I will object. First of all,
I don't know whether it's going to be an issue or
not; if you want to pose an educational -- and start
from scratch on that.

THE WITNESS: A I don't see anything that
prohibits expressing a professional opinion on either
or both of the views.

MR. CAMPBELL: Q Professor Marsden, how would
you define academic freedom?

MR. SIANO: Objection; it calls for a legal
conclusion.

44

MR. CAMPBELL: I am asking for his personal
opinion.

MR. SIANO: It still calls for a legal
conclusion. I am not going to object to an answer.
I am just telling you the question is improper.

THE WITNESS: A That's not something I have
a very--well, it's something that could be defined
in lots of different ways, I mean, academic
freedom to teach classes as long as you want, and
it may be just fifty minutes long; and you have
academic freedom to say anything you want, and
that's limited in various ways in different situations,
so academic freedom as a general category doesn't say
much to me.

You have to have a specific case
to say what it would mean. In itself, I don't see it
as necessarily a positive value or a negative value
to have academic freedom.

MR. CAMPBELL: Q In your opinion, may the
state prescribe a curriculum in the school?

A May it?

MR. SIANO: Objection; it goes beyond the
scope of his expertise; I'll let him answer.

45

THE WITNESS: A There are areas of guidelines
that might be appropriate for a state to provide
for teaching in schools, and clearly, states may
and do prescribe some curriculum. I think every
state requires that people learn to read some
language or other; so, yes, and usually, you know,
they do prescribe some things in the curriculum.

Q In your opinion, should teachers be
free to evaluate the validity of the subjects which
are discussed in the classroom?

A They should be free to evaluate them,
certainly.

Q Recognizing it's not your area of
expertise, but knowing you are a teacher, is it
your opinion that the presentation of divergent
views in the classroom can lead to a better appreci-
ation by students of the subject matter under
discussion?

MR. SIANO: Objection.

THE WITNESS: A They might or they might not.
It depends on how many divergent views there are,
and what the divergent views are. Divergency, for
its own sake, certainly isn't of any value.

Q Professor Marsden, how would you define

46

religion?

MR. SIANO: I am going to object.

THE WITNESS: A There are two kinds of
definition, I think, that one might give. One would
be an organized belief system that involves belief
in a diety; the other one would be just an organized
belief system.
Q How would you define deity?

A Well, let's say roughly, someone that--
some being that has supernatural powers or/and
authority.

Q What is Biblical inspiration?

A You mean, what is my view of it?

Q How would you define it?

MR. SIANO: Before you answer, I'll object.
I think I'm going to put my objections on the record
quite extensively. It's beyond his expertise.

THE WITNESS: A That the Bible reflects--
let me rephrase that--that God has had a hand in
determining what the Bible says.

MR. CAMPBELL: Q Would fundamentalists believe
that the Bible is inspired by God?

A Yes.

Q Is there a difference between literalism

47

and inspiration, in that sense; would a fundamentalist
say the Bible is inspired, or would he say it's
literal?

A Those are two different questions. One
question has to do with the authority of the Bible;
and the other one is a question of interpretation
of the Bible. And one's stance of one doesn't entail
one's stance of the other.

Q So the authority of the Bible would be
inspired, is that correct?

A Right; you might think that the Bible
is authoritative because it's inspired by God,
like the fundamentalists always say that; but that
doesn't settle the question as to how the Bible is
to be interpreted.

Q Is Devine revelation the same thing to
you as Biblical inspiration?

A No, because you have a revelation that
wasn't in the Bible.

Q What is Devine revelation?

A God revealing himself, so for instance,
"the heavens declare the glory of God," would be an
example of Devine revelation.

Q Would fundamentalists believe in Devine

48

revelation?

A Yes.

Q Is there any particular examples you can
think of they would look to as Devine revelation?

A Nature and Scripture.

Q In what respect?

A All nature is a revelation of God's
handiwork. All science points to God.

Q What is your personal opinion on Biblical
inspiration?

A I believe the Bible is inspired by God.

Q What is liberalism?

MR. SIANO: Wait a minute. Is that political,
social--

MR. CAMPBELL: Q There's a form of--I think in
some discussion of religion and fundamentalism--I
think there is--but an opposite force might be
liberalism, is that correct?

THE WITNESS: A That's right; there's
political liberalism which has a whole bunch of
meanings; and then, there is sometimes what you
call theological liberalism, which is sometimes
identified with what used to be called modernism;
and basically, it's people who say that Christian

49

Doctrine should be modified in order to accommodate
the best ideals in modern culture.

But it has a variety of meanings;
it depends on what conservatism is before you can
define what your liberalism is.

Q I understand.

Would conservatism be the same thing
as fundamentalism?

A It's not identical.

Q How do they differ?

A Conservatism is--again, it's hard to say
what conservatism is--I heard someone yesterday say
that President Reagan claims to be a conservative
but that's what people always do when they're
making a radical change, and so, conservatism is
really a very illusive word that--

Q I am thinking in terms of a theological
conservatism, would it be the same thing as a funda-
mentalist?

A Not necessarily. He might be and might
not be. One trait of a fundamentalist is that he or
she be militant, and you might have a non-militant
conservative; and then, some conservatives like, let's
say--you might have a High Church Episcopalian conser-

50

vative who would not be a fundamentalist, because
once that person is conservative, it would be a
different body of doctrine--I would say that all
fundamentalists think of themselves as conservatives,
but certainly, not all conservatives think of them-
selves as fundamentalists.

Q So theological conservatism would be a
larger body or group or category than fundamentalists?

A Yes.

Q How would you define a theological
conservative?

A Well, usually, it's someone who wants
to conserve some theological tradition. It just
depends what the tradition is, but someone who is
opposed to what he considers to be liberal change.

As I say, conservatism is a term
that I don't find particularly enlightening unless
there is something else said about it.

Q I understand.

Would you put yourself in any of these
categories we've talked about: fundamentalist, or
conservative, or liberal?

A I'd rather not.

Q If you had to though, where do you think

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