Pursuant to the Court's Memorandum Opinion filed this date, judgment is hereby entered in favor of the plaintiffs and against the defendants. The relief prayed for is granted.

Dated this January 5, 1982.

Pursuant to the Court's Memorandum Opinion filed this date, the defendants and each of them and all their servants and employees are hereby permanently enjoined from implementing in any manner Act 590 of the Acts of Arkansas of 1981.

It is so ordered this January 5, 1982.

Introduction

On March 19, 1981, the Governor of Arkansas signed into law Act 590 of 1981, entitled "Balanced Treatment for Creation-Science and Evolution-Science Act." The Act is codified as Ark. Stat. Ann. &80-1663, et seq., (1981 Supp.). Its essential mandate is stated in its first sentence: "Public schools within this State shall give balanced treatment to creation-science and to evolution-science." On May 27, 1981, this suit was filed (1) challenging the constitutional validity of Act 590 on three distinct grounds.

First, it is contended that Act 590 constitutes an establishment of religion prohibited by the First Amendment to the Constitution, which is made applicable to the states by the Fourteenth Amendment. Second, the plaintiffs argue the Act violates a right to academic freedom which they say is guaranteed to students and teachers by the Free Speech Clause of the First Amendment. Third, plaintiffs allege the Act is impermissibly vague and thereby violates the Due Process Clause of the Fourteenth Amendment.

The individual plaintiffs include the resident Arkansas Bishops of the United Methodist, Episcopal, Roman Catholic and African Methodist Episcopal Churches, the principal official of the Presbyterian Churches in Arkansas, other United Methodist, Southern Baptist and Presbyterian clergy, as well as several persons who sue as parents and next friends of minor children attending Arkansas public schools. One plaintiff is a high school biology teacher. All are also Arkansas taxpayers. Among the organizational plaintiffs are the American Jewish Congress, the Union of American Hebrew Congregations, the American Jewish Committee, the Arkansas Education Association, the National Association of Biology Teachers and the national Coalition for Public Education and Religious Liberty, all of which sue on behalf of members living in Arkansas (2).

The defendants include the Arkansas Board of Education and its members, the Director of the Department of Education, and the State Textbooks and Instructional materials Selecting Committee (3). The Pulaski County Special School District and its Directors and Superintendent were voluntarily dismissed by the plaintiffs at the pre-trial conference held October 1, 1981.

The trial commenced December 7, 1981, and continued through December 17, 1981. This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law. Further orders and judgments will be in conformity with this opinion.

There is no controversy over the legal standards under which the Establishment Clause portion of this case must be judged. The Supreme Court has on a number of occasions expounded on the meaning of the clause, and the pronouncements are clear. Often the issue has arisen in the context of public education, as it has here. In Everson v. Board of Education, 330 U.S. 1, 15-16 (1947), Justice Black stated:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or what ever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause ... was intended to erect "a wall of separation between church and State."

The Establishment Clause thus enshrines two central values: voluntarism and pluralism. And it is in the area of the public schools that these values must be guarded most vigilantly.

Designed to serves as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of Government from irreconcilable pressures by religious groups, or religion from censorship and coercion however subtly exercised, requires strict confinement of the State to instruction other than religious, leaving to the individual's church and home, indoctrination in the faith of his choice. [McCollum v. Board of Education, 333 U.S. 203, 216-217 (1948), (Opinion of Frankfurter, J., joined by Jackson, Burton, and Rutledge, J.J.)]

The specific formulation of the establishment prohibition has been refined over the years, but its meaning has not varied from the principles articulated by Justice Black in Everson. In Abbington School District v. Schempp, 374 U.S. 203, 222 (1963), Justice Clark stated that "to withstand the strictures of the Establishment Clause there must be a secular legislative purposed and a primary effect that neither advances nor inhibits religion." The court found it quite clear that the First Amendment does not permit a state to require the daily reading of the Bible in public schools, for "[s]urely the place of the Bible as an instrument of religion cannot be gainsaid." Id. at 224. Similarly, in Engel v. Vitale, 370 U.S. 421 (1962), the Court held that the First Amendment prohibited the New York Board of Regents from requiring the daily recitation of a certain prayer in the schools. With characteristic succinctness, Justice Black wrote: "Under [the First] Amendment's prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity." Id. at 430. Black also identified the objective at which the Establishment Clause was aimed: "its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion." Id. at 431.

Most recently, the Supreme court has held that the clause prohibits a state from requiring the posting of the Ten Commandments in public school classrooms for the same reasons that officially imposed daily Bible reading is prohibited. Stone v. Graham, 449 U.S. 39 (1980). The opinion in Stone relies on the most recent formulation of the Establishment Clause test, that of Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971):

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster "an excessive government entanglement with religion." [ Stone v. Graham, 449 U.S. at 40.]

It is under this three part test that the evidence in this case must be judged. Failure on any of these grounds is fatal to the enactment.

The religious movement known as Fundamentalism began in nineteenth century America as part of evangelical Protestantism's response to social changes, new religious thought and Darwinism. Fundamentalists viewed these developments as attacks on the Bible and as responsible for a decline in traditional values.

The various manifestations of Fundamentalism have had a number of common characteristics (4), but a central premise has always been a literal interpretation of the Bible and a belief in the inerrancy of the Scriptures. Following World War I, there was again a perceived decline in traditional morality, and Fundamentalism focused on evolution as responsible for the decline. One aspect of their efforts, particularly in the south, was the promotion of statutes prohibiting the teaching of evolution in public schools. In Arkansas, this resulted in the adoption of Initiated Act 1 of 1929 (5).

Between the 1920's and early 1960's, anti-evolutionary sentiment had a subtle but pervasive influence on the teaching of biology in public schools. Generally, textbooks avoided the topic of evolution and did not mention the name of Darwin. Following the launch of the Sputnik satellite by the Soviet Union in 1957, the National Science Foundation funded several programs designed to modernize the teaching of science in the nation's schools. The biological Sciences Curriculum Study (BSCS), a nonprofit organization, was among those receiving grants for curriculum study and revision. Working with scientists and teachers, BSCS developed a series of biology texts which, although emphasizing different aspects of biology, incorporated the theory of evolution as a major theme. The success of the BSCS effort is shown by the fact that fifty percent of American school children currently use BSCS books directly and the curriculum is incorporated indirectly in virtually all biology texts. (Testimony of Mayer; Nelkin, Px 1) (6).

In the early 1960's, there was again a resurgence of concern among Fundamentalists about the loss of traditional values and a fear of growing secularism in society. The Fundamentalist movement became more active and has steadily grown in numbers and political influence. There is an emphasis among current Fundamentalists on the literal interpretation of the Bible and the Book of Genesis as the sole source of knowledge about origins.

The term "scientific creationism" first gained currency around 1965 following publication of The Genesis Flood in 1961 by Whitcomb and Morris. There is undoubtedly some connection between the appearance of the BSCS texts emphasizing evolutionary thought and efforts of Fundamentalist to attach the theory. (Mayer)

In the 1960's and early 1970's, several Fundamentalist organizations were formed to promote the idea that the Book of Genesis was supported by scientific data. The terms "creation science" and "scientific creationism" have been adopted by these Fundamentalists as descriptive of their study of creation and the origins of man. Perhaps the leading creationist organization is the Institute for Creation Research (ICR), which is affiliated with the Christian heritage College and supported by the Scott Memorial Baptist Church in San Diego, California. The ICR, through the Creation-Life Publishing Company, is the leading publisher of creation science material. other creation science organizations include the Creation Science Research Center (CSRC) of San Diego and the Bible Science Association of Minneapolis, Minnesota. In 1963, the Creation Research Society (CRS) was formed from a schism in the American Scientific Affiliation (ASA). It is an organization of literal Fundamentalists (7) who have the equivalent of a master's degree in some recognized area of science. A purpose of the organization is "to reach all people with the vital message of the scientific and historical truth about creation." Nelkin, The Science Textbook Controversies and the Politics of Equal Time, 66. Similarly, the CSRC was formed in 1970 from a split in the CRS. Its aim has been "to reach the 63 million children of the United States wit h the scientific teaching of Biblical creationism." Id. at 69.

Among creationist writers who are recognized as authorities in the field by other creationists are Henry M. Morris, Duane Gish, G. E. Parker, harold S. Slusher, Richard B. Bliss, John W. Moore, Martin E. Clark, W. L. Wysong, Robert E. Kofahl, and Kelly L. Segraves. Morris is Director of ICR, Gish is Associate Director and Segraves is associated with CSRC.

Creationists view evolution as a source of society's ills, and the writings of Morris and Clark are typical expressions of that view.

Evolution is thus not only anti-Biblical and anti-Christian, but it is utterly unscientific and impossible as well. But it has served effectively as the pseudo-scientific basis of atheism, agnosticism, socialism, fascism, and numerous other false and dangerous philosophies over the past century. [Morris and Clark, The Bible Has The Answer, (Px 31 and Pretrial Px 89) (8)]

Creationists have adopted the view of Fundamentalists generally that there are only two positions with respect to the origins of the earth and life: belief in the inerrancy of the Genesis story of creation and of a worldwide flood as fact, or a belief in what they call evolution.

Henry Morris has stated, "It is impossible to devise a legitimate means of harmonizing the Bible with evolution." Morris, "evolution and the Bible," ICR Impact Series Number 5 (undated, unpaged), quoted in Mayer, Px 8, at 3. This dualistic approach to the subject of origins permeates the creationist literature.

The creationist organizations consider the introduction of creation science into the public schools part of their ministry. The ICR has published at least two pamphlets (9) containing suggested methods for convincing school boards, administrators and teachers that creationism should be taught in public schools. The ICR has urged its proponents to encourage school officials to voluntarily add creationism to the curriculum (10).

Citizens For Fairness In Education is an organization based in Anderson, South Carolina, formed by Paul Ellwanger, a respiratory therapist who is trained in neither law nor science. Mr. Ellwanger is of the opinion that evolution is the forerunner of many social ills, including Nazism, racism and abortion (Ellwanger Depo. at 32-34). About 1977, Ellwanger collected several proposed legislative acts with the idea of preparing a model state act requiring the teaching of creationism as science in opposition to evolution. One of the proposals he collected was prepared by Wendell Bird, who is now a staff attorney for ICR (11). From these various proposals, Ellwanger prepared a "model act" which calls for "balanced treatment" of "scientific creationism" and "evolution" in public schools. He circulated the proposed act to various people and organizations around the country.

Mr. Ellwanger's views on the nature of creation science are entitled to some weight since he personally drafted the model act which became Act 590. His evidentiary deposition with exhibits and unnumbered attachments (produced in response to a subpoena duces tecum speaks to both the intent of the Act and the scientific merits of creation science. Mr. Ellwanger does not believe creation science is a science. In a letter to Pastor Robert E. Hays he states, "While neither evolution nor creation can qualify as a scientific theory, and since it is virtually impossible at this point to educate the whole world that evolution is not a true scientific theory, we have freely used these terms -- the evolution theory and the theory of scientific creationism -- in the bill's text." (Unnumbered attachment to Ellwanger Depo., at 2.) He further states in a letter to Mr. Tom Bethell, "As we examine evolution (remember, we're not making any scientific claims for creation, but we are challenging evolution's claim to be scientific..." (Unnumbered attachment to Ellwanger Depo. at 1.)

Ellwanger's correspondence on the subject shows an awareness that Act 590 is a religious crusade, coupled with a desire to conceal this fact. In a letter to State Senator Bill Keith of Louisiana, he says, "I view this whole battle as one between God and anti-God forces, though I know there are a large number of evolutionists who believe in God." And further, "... it behooves Satan to do all he can to thwart our efforts and confuse the issue at every turn." Yet Ellwanger suggest to Senator Keith, "IF you have a clear choice between having grassroots leaders of this statewide bill promotion effort to be ministerial or non-ministerial, be sure to opt for the non-ministerial. It does the bill effort no good to have ministers out there in the public forum and the adversary will surely pick at this point ... Ministerial persons can accomplish a tremendous amount of work from behind the scenes, encouraging their congregations to take the organizational and P.R. initiatives. And they can lead their churches in storming Heaven with prayers for help against so tenacious an adversary." (Unnumbered attachment to Ellwanger Depo. at 1.)

Ellwanger shows a remarkable degree of political candor, if not finesse, in a letter to State Senator Joseph Carlucci of Florida:

2. It would be very wise, if not actually essential, that all of us who are engaged in this legislative effort be careful not to present our position and our work in a religious framework. For example, in written communications that might somehow be shared with those other persons whom we may be trying to convince, ti would be well to exclude our own personal testimony and/or witness for Christ, but rather, if we are so moved, to give that testimony on a separate attached note. (Unnumbered attachment to Ellwanger Depo. at 1.)

The same tenor is reflected in a letter by Ellwanger to Mary Ann Miller, a member of FLAG (Family, Life, America under God) who lobbied the Arkansas Legislature in favor of Act 590:

... we'd like to suggest that you and your co-workers be very cautious about mixing creation-science with creation-religion ... Please urge your co-workers not to allow themselves to get sucked into the "religion" trap of mixing the two together, for such mixing does incalculable harm to the legislative thrust. It could even bring public opinion to bear adversely upon the higher courts that will eventually have to pass judgment on the constitutionality of this new law. (Ex. 1 to Miller Depo.)

Perhaps most interesting, however, is Mr. Ellwanger's testimony in his deposition as to his strategy for having the model act implemented:

Q. You're trying to play on other people's religious motives.

A. I'm trying to play on their emotions, love, hate, their likes, dislikes, because I don't know any other way to involve, to get humans to become involved in human endeavors. I see emotions as being a healthy and legitimate means off getting people's feelings into action, and ... I believe that the predominance of population in America that represents the greatest potential for taking some kind of action in this area is a Christian community. I see the Jewish community as far less potential in taking action ... but I've seen a lot of interest among Christians and I feel, why not exploit that to get the bill going if that's what it takes. (Ellwanger Depo. at 146-147).

Mr. Ellwanger's ultimate purpose is revealed in the closing of his letter to Mr. Tom Bethell: "Perhaps all this is old hat to you, Tom, and if so, I'd appreciate your telling me so and perhaps where you've heard it before -- the idea of killing evolution instead of playing these debating games that we've been playing for nigh over a decade already." (Unnumbered attachment to Ellwanger Depo. at 3.)

It was out of this milieu that Act 590 emerged. The Reverend W. A. Blount, a Biblical literalist who is a pastor of a church in the Little Rock area and was, in February, 1981, chairman of the Greater Little Rock Evangelical Fellowship, was among those who received a copy of the model act from Ellwanger (12).

At Reverend Blount's request, the Evangelical Fellowship unanimously adopted a resolution to seek an introduction of Ellwanger's act in the Arkansas Legislature. A committee composed of two ministers, Curtis Thomas and W. A. Young, was appointed to implement the resolution. Thomas obtained from Ellwanger a revised copy of the model act which he transmitted to Carl Hunt, a business associate of Senator James L. Holsted, with the request that Hunt prevail upon Holsted to introduce the act.

Holsted, a self-described "born again" Christian Fundamentalist, introduced the act in the Arkansas Senate. He did not consult the State Department of Education, scientists, science educators or the Arkansas Attorney General (13). The Act was not referred to any Senate committee for hearing and was passed after only a few minutes' discussion on the Senate floor. In the House of Representatives, the bill was referred to the Education Committee which conducted a perfunctory fifteen minute hearing. No scientist testified at the hearing, nor was any representative form the State Department of Education called to testify.

Ellwanger's model act was enacted into law in Arkansas as Act 590 with amendment or modification other than minor typographical changes. The legislative "finding of fact" in Ellwanger's act and Act 590 are identical, although no meaningful fact-finding was employed the General Assembly.

Ellwanger's efforts in preparation of the model act and campaign for its adoption in the states were motivated by his opposition to the theory of evolution and his desire to see the Biblical version of creation taught in the public schools. There is no evidence that the pastors, Blount, Thomas, Young, or The Greater Little Rock Evangelical Fellowship were motivated by anything other than their religious convictions when proposing its adoption or during their lobbying efforts in its behalf. Senator Holsted's sponsorship and lobbying efforts in behalf of the Act were motivated solely by his religious beliefs and desire to see the Biblical version of creation taught in the public schools (14).

The State of Arkansas, like a number of states whose citizens have relatively homogeneous religious beliefs, has a long history of official opposition to evolution which is motivated by adherence to Fundamentalist beliefs in the inerrancy of the Book of Genesis. This history is documented in Justice Fortas' opinion in Epperson v. Arkansas, 393 U.S. 97 (1968), which struck down Initiated Act 1 of 1929, Ark. Stat. Ann.

&&80-1627-1628, prohibiting the teaching of the theory of evolution. To this same tradition may be attributed Initiated Act 1 of 1930, Ark. Stat. Ann. &80-1606 (Repl. 1980), requiring "the reverent daily reading of a portion of the English Bible" in every public school classroom in the State (15).

It is true, as defendants argue, that courts should look to legislative statements of a statutes purpose in Establishment Clause cases and accord such pronouncements great deference. See, e.g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973) and McGowan v. Maryland, 366 U.S. 420, 445 (1961). Defendants also correctly state the principle that remarks by the sponsor or author of a bill are not considered controlling in analyzing legislative intent. See, e.g., United States v. Emmons, 410 U.S. 396 (1973) and Chrysler Corp v. Brown, 441 U.S. 281 (1979).

Courts are not bound, however, by legislative statements of purpose or legislative disclaimers. Stone v. Graham, 449 U.S. 39 (1980); Abbington School Dist. v. Schempp, 374 U.S. 203 (1963). In determining the legislative purpose of a statute, courts may consider evidence of the historical context of the Act, Epperson v. Arkansas, 393 U.S. 97 (1968), the specific sequence of events leading up to passage of the Act, departures from normal procedural sequences, substantive departures from the normal, Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977), and contemporaneous statements of the legislative sponsor, Fed. Energy Admin. v. Algonquin SNG Inc. 426 U.S. 548, 564 (1976).

The unusual circumstances surrounding the passage of Act 590, as well as the substantive law of the First Amendment warrant an inquiry into the stated legislative purposes. The author of the Act has publicly proclaimed the sectarian purpose of the proposal. The Arkansas residents who sought legislative sponsorship of the bill did so for a purely sectarian purpose. These circumstances alone may not be particularly persuasive, but when considered with the publicly announced motives of the legislative sponsor made contemporaneously with the legislative process; the lack of any legislative investigation, debate or consultation with any educators or scientists; the unprecedented intrusion in school curriculum (16); and official history of the State of Arkansas on the subject, it is obvious that the statement of purpose has little, if any, support in fact. The State failed to produce any evidence which would warrant an inference or conclusion that at any point in the process anyone considered the legitimate educational value of the Act. It was simply and purely an effort to introduce the Biblical version of creation into the public school curricula. The only inference which can be drawn from these circumstances is that the Act was passed with the specific purpose by the General Assembly of advancing religion. The Act therefore fails the first prong of the three-pronged test, that of secular legislative purpose, as articulated in Lemon v. Kurtzman, supra, and Stone v. Graham, supra.

If the defendants are correct and the Court is limited to an examination of the language of the Act, the evidence is overwhelming that both the purpose and effect of Act 590 is the advancement of religion in the public schools.

Section 4 of the Act provides:

Definitions, as used in this Act:

(a) "Creation-science" means the scientific evidences for creation and inferences from those scientific evidences. Creation-science includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds.

(b) "Evolution-science" means the scientific evidences for evolution and inferences from those scientific evidences. Evolution-science includes the scientific evidences and related inferences that indicate: (1) Emergence by naturalistic processes of the universe from disordered matter and emergence of life from nonlife; (2) The sufficiency of mutation and natural selection in bringing about development of present living kinds from simple earlier kinds; (3) Emergence by mutation and natural selection of present living kinds from simple earlier kinds; (4) Emergence of man from a common ancestor with apes; (5) Explanation of the earth's geology and the evolutionary sequence by uniformitarianism; and (6) An inception several billion years ago of the earth and somewhat later of life.

(c) "Public schools" means public secondary and elementary schools.

The evidence establishes that the definition of "creation science" contained in 4(a) has as its unmentioned reference the first 11 chapters of the Book of Genesis. Among the many creation epics in human history, the account of sudden creation from nothing, or creatio ex nihilo, and subsequent destruction of the world by flood is unique to Genesis. The concepts of 4(a) are the literal Fundamentalists' view of Genesis. Section 4(a) is unquestionably a statement of religion, with the exception of 4(a)(2) which is a negative thrust aimed at what the creationists understand to be the theory of evolution (17).

Both the concepts and wording of Section 4(a) convey an inescapable religiosity. Section 4(a)(1) describes "sudden creation of the universe, energy and life from nothing." Every theologian who testified, including defense witnesses, expressed the opinion that the statement referred to a supernatural creation which was performed by God.

Defendants argue that : (1) the fact that 4(a) conveys idea similar to the literal interpretation of Genesis does not make it conclusively a statement of religion; (2) that reference to a creation from nothing is not necessarily a religious concept since the Act only suggests a creator who has power, intelligence and a sense of design and not necessarily the attributes of love, compassion and justice

(18); and (3) that simply teaching about the concept of a creator is not a religious exercise unless the student is required to make a commitment to the concept of a creator.

The evidence fully answers these arguments. The idea of 4(a)(1) are not merely similar to the literal interpretation of Genesis; they are identical and parallel to no other story of creation (19).

The argument that creation from nothing in 4(a)(1) does not involve a supernatural deity has no evidentiary or rational support. To the contrary, "creation out of nothing" is a concept unique to Western religions. In traditional Western religious thought, the conception of a creator of the world is a conception of God. Indeed, creation of the world "out of nothing" is the ultimate religious statement because God is the only actor. As Dr. Langdon Gilkey noted, the Act refers to one who has the power to bring all the universe into existence from nothing. The only "one" who has this power is God (20).

The leading creationist writers, Morris and Gish, acknowledge that the idea of creation described in 4(a)(1) is the concept of creation by God and make no pretense to the contrary (21). The idea of sudden creation from nothing, or creatio ex nihilo, is an inherently religious concept. (Vawter, Gilkey, Geisler, Ayala, Blount, Hicks.)

The argument advanced by defendants' witness, Dr. Norman Geisler, that teaching the existence of God is not religious unless the teaching seeks a commitment, is contrary to common understanding and contradicts settled case law. Stone v. Graham, 449 U.S. 39 (1980), Abbington School District v. Schempp, 374 U.S. 203, 222 (1963).

The facts that creation science is inspired by the Book of Genesis and that Section 4(a) is consistent with a literal interpretation of Genesis leave no doubt that a major effect of the Act is the advancement of particular religious beliefs. The legal impact of this conclusion will be discussed further at the conclusion of the Court's evaluation of the scientific merit of creation science.

Decision continued on next page