epperson and secular purpose

[Thomas C. Berg]

Last week Andy Koppelman visited our school and gave his
excellent paper on the secular purpose doctrine, parts of
which we have already discussed on list.  One of the
important cases, of course, is Epperson (1968), which held
there was no secular purpose behind the 1920s-era Arkansas
law banning evolution from the classroom.  We have also
discussed Epperson on list recently, primarily in the
context of whether Justice Black's concurrence was right in
saying that the desire to "avoid controversial subjects
[such as evolution] in the curriculum" is a secular
purpose.  Some people responded that "avoiding controversy"
there reduces simply to deferring to religious
sensibilities and that that cannot be a secular purpose.

Thinking about Andy's paper, though, made me think about
another purpose behind the Arkansas law, one that is not
subject to the above objection -- and also a purpose which
I'm quite confident was actually at the heart of the 1920s
opposition to evolution.  Recent historical work seems to
establish pretty solidly that William Jennings Bryan's
crusade against evolution (the crusade that produced such
laws) was substantially motivated by his belief that
Darwinism would produce social Darwinism -- that the notion
of survival of the fittest would be also applied to social
relations and would lead to callous policies toward the
less well off.  This was all of a piece with Bryan's
progressive political stance throughout his career. See
George Marsden, Fundamentalism and American Culture; and Ed
Larson's Pulitzer-Prize winning book on the Scopes trial,
the title of which I forget.

1.  Isn't it clear, not only that this moral concern was a
substantial part of the reason for such laws, but also that
such a reason should meet the secular purpose requirement
of Lemon?  Bryan's moral concern may not have been
substantively correct, but surely it was constitutionally
legitimate.

2.  The Court never mentioned this aspect of the law, so
far as I remember.  Isn't Epperson a prime example of an
over-casual approach by a Court that is way too confident
that it can single out laws that are so silly that they
must serve "solely religious" purposes?  I see the Court's
flunking of history in Epperson as a great exhibit for some
of the problems with the secular purpose prong.

-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Birmingham, AL 35229
(205)726-2415
Email: tcberg at samford.edu