DISSENT:

In a 7-2 decision Justice Scalia debated Justice Brennan. Here is an excerpt: “During oral argument, Justice Scalia peppered attorneys with questions about whether this or that form of creation would necessarily be religious. He asked the state’s attorney, Wendell Bird, whether creation-science might allow for creation by “a giant slug” as well as a more personal God. Bird agreed that creation-science made no assumptions about the nature of the creator—only that there was one. When it came time for argument by Topkis, Scalia returned to the issue of whether creation by a creator was an inherently religious concept. The justice asked Topkis whether he “considered Aristotelianism a religion?” Topkis replied, “Of course not.” “Well, then,” Scalia asserted, “you could believe in a first cause, an unmoved mover, that may be impersonal, and has no obligation of obedience or veneration from men and, in fact, doesn’t care about what’s happening to mankind—and believe in creation.” “Not when creation means by a divine creator,” Topkis ojected. “That’s the test.” He added that there could be no doubt, given the history of the statute, that Louisiana meant “divine” creation, not creation by an unmoved mover. Justice Scalia has a reputation for throwing attorneys off-balance with elaborate hypothetical questions. True to form, he posed for Topkis a long hypothetical question—for the purpose, presumably, of demonstrating that a law could have a religious motivation and yet be constitutional. “Let’s assume,” he began, “that there is an ancient history professor…who has been teaching that the Roman Empire did not extend to the southern shore of the Mediterranean in the first century A.D. And let’s assume a group of Protestants who are concerned about that fact, inasmuch as it makes it seem that the Biblical story of the crucifixion has thing a bit wrong.” Concluding his story, Scalia tells Topkis that the upset students march “to the principal of the school, and say, ‘This history teacher is teaching what is just falsehood.’ And the principal says, ‘Gee, you’re right.’ And he goes and directs the teacher to teach that Rome was on the southern shore of the Mediterranean in the first century A.D.” The principal’s order was “clearly” religiously motivated, Scalia asserted, but wouldn’t it also, he asked, be constitutional? Topkis replied that he thought the hypothetical was distinguishable from his case. In the history class example, he said, the principal’s motivation would not be religious, rather “he would be acting out of the scholar’s interest in truth”—a worthy and a constitutional motivation. Louisiana’s motivation, however, “by every index we can possibly have” is nothing but religious, Topkis argued. As far as the Constitution is concerned, Scalia insisted, all that matters is that legislators sincerely believed that creation science was scientific. It is not necessary, for constitutional purposes, that their collective assessment was right. If a legislature full of ignoramuses requires geography teachers to teach that the earth is flat, it is a sorry state of affairs—but not an unconstitutional one. Moreover, the fact that many supporters of the law might also have had religious motivations is of no concern. Scalia noted that the Court would never “strike down a law providing money to feed the hungry or shelter the homeless” just because legislators might have had religious beliefs that influenced their decision. Scalia left little doubt that he thought the majority let its own views about creation science and evolution—rather than the beliefs of Louisiana legislators—determine the outcome of the case. He reminded the majority that Senator Keith “repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine.” He cited his testimony at the first hearing on the legislation: “We are not going to say today that you should have some kind of religious instructions in our school….I am not proposing that we take the Bible in each science class and read the first chapter of Genesis.””