Evolution toward Neutrality: Evolution Disclaimers, Establishment Jurisprudence Confusions, and a Proposal of Untainted Fruits of a Poisonous Tree


This Article deals with the controversy surrounding the teaching of evolutionary theory in American public schools, with a specific focus on disclaimers read by teachers before they teach evolution. With the rise of religious fundamentalism and the correspondent change in the American socio-legal climate, questions of religion and interpretation of the Religion Clauses of the U.S. Constitution have become increasingly pertinent. In particular, the precise relationship between the Free Exercise and Establishment Clauses is of special importance with religious groups now more vocal in their articulation of their free exercise rights.

The current form of disclaimer either mentions specific religious theories about origins as alternatives to evolution, or denigrates evolutionary theory in more indirect ways. Because such disclaimers are clearly antithetical to the neutrality concerns of the Establishment Clause, they have been held unconstitutional by all courts to date, including the December 2005 Kitzmiller case in Dover, Pennsylvania. However, this Article suggests that striking down the disclaimers without providing alternative responses to the legitimate free exercise concerns involved may violate the Free Exercise Clause. As a way of negotiating free exercise and establishment concerns, this Article proposes a generalized disclaimer: one that does not single out evolutionary theory for special treatment, but rather addresses scientific inquiry as a whole. Generalized disclaimers neither discriminate among religion, or between religion and non-religion, or between scientific theories. This Article will then go on to discuss whether such generalized disclaimers can ever be constitutional, despite their origins in the evolution controversy. That is, are they poisoned by their roots, or can they be purged of this poison if they become sufficiently neutral in form? This Article will conclude that the formally neutral generalized disclaimers should be upheld on constitutional grounds.


Constitutional Law | Religion Law

Date of this Version

April 2006