Joseph C. Daniel, Jr. v. Hugh Waters, Chairman, Textbook Commission of the State of Tennessee , 515 F.2d 485 ( 1975 )

EDWARDS, Circuit Judge.

We are confronted in this appeal by a 1974 version of the legislative effort to suppress the theory of evolution which produced the famous Scopes “monkey trial” of 1925. See Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). In this instance the Tennessee Legislature has sought to avoid direct suppression of speech and has eschewed direct criminal sanctions. But the purpose of establishing the Biblical version of the creation of man over the Darwinian theory of the evolution of man is as clear in the 1973 statute as it was in the statute of 1925.

Plaintiffs are teachers of biology in Tennessee public schools, some of whom are also parents of public school students, plus the National Association of Biology Teachers. The defendants are members of the Tennessee state board which is charged with the responsibility of selecting public school textbooks. Jurisdiction is invoked under 28 U.S.C. § 1343(3) (1970).

The statute at issue, Chapter 377 of the 1973 Public Acts of Tennessee, is reproduced below. We have underlined the specific language which plaintiffs-appellants assert to be patently violative of the First and Fourteenth Amendments to the Constitution of the United States:

SECTION 1. Tennessee Code Annotated, Section 49 — 2008, is amended by adding the following paragraph:

Any biology textbook used for teaching in the public schools, which expresses an opinion of. or relates a theory about origins or creation of man and his world shall be prohibited from being used as a textbook in such system unless it specifically states that it is a theory as to the origin and creation of man and his world and is not represented to be scientific fact. Any textbook so used in the public education system which expresses an opinion or relates to a theory or theories shall give in the same text-book and under the same subject commensurate attention to. and an equal amount of emphasis on. the origins and creation of man and his world as the same is recorded in other theories, including, but not limited to. the Genesis account in the Bible. The provisions of this Act shall not apply to use of any textbook now legally ini use, until the beginning of the school year of 1975 — 76; provided, however, that the textbook requirements stated above shall in no way diminish the duty of the State Textbook Commission to prepare a list of approved standard editions of textbooks for use in the public schools of the state as provided in this section. Each local school board may use textbooks or supplementary material as approved by the State Board of Education to carry out the provisions of this section. The teaching of all occult or satanical beliefs of human origin is expressly excluded from this Act.

SECTION 2. Provided, however, that the Holy Bible shall not be defined as a textbook, but is hereby declared to be a reference work and shall not be required to carry the disclaimer above provided for textbooks.

SECTION 3. The provisions of this Act are hereby declared to be severa-ble; and if any of its sections, provisions, clauses, or parts be held unconstitutional or void, then the remainder of this Act shall continue in full force and effect, it being the legislative intent now hereby declared that this Act would have been adopted even if such unconstitutional or void matter had not been included herein.

SECTION 4. This Act shall take effect upon becoming a law, the public welfare requiring it.

1973 Tenn.Pub.Acts, Chap. 377 (Emphasis added.)

On the filing of the complaint and a motion for a preliminary injunction in this case, the District Judge, presumably because the complaint alleged the unconstitutionality of a state statute of statewide application, initiated the convening of a three-judge court. (See 28 U.S.C. §§ 2281, 2284 (1970) ).

The State of Tennessee then appeared and filed a motion noting that the same question was then pending in the Chan-eery Court of Davidson County, Tennessee. Tennessee moved that the federal court dismiss the complaint, or' in the alternative, enter an order of abstention pending final state court adjudication.

Without a hearing and without reaching the merits, the three-judge court entered an order, taking notice of the state court litigation, abstaining from adjudication pending final disposition of same, but retaining jurisdiction of the case.

Plaintiffs-appellants thereupon filed a jurisdictional statement seeking an appeal to the United States Supreme Court. After a Supreme Court order for a response from the State and the filing of same, the following order was entered:

The judgment is vacated and the case is remanded to the United States District Court for the Middle District of Tennessee so that it may enter a fresh judgment from which a timely appeal may be taken to the Court of Appeals.

Although a protective appeal had previously been timely filed with this court, the three-judge District Court reentered its order of February 26, 1974, and plaintiffs-appellants have filed notice of appeal, which appeal has now been briefed and argued before this court.

The parties have advised that on September 9, 1974, the Chancery Court of Davidson County, Tennessee, decided the case before it on the merits, holding that the statute attacked was in violation of the First and Fourteenth Amendments. The State has appealed, thereby suspending the effectiveness of the Circuit Court decree until the Supreme Court of Tennessee decides the case.

ABSTENTION

Abstention is an appropriate response to a federal complaint alleging unconstitutionality of a state statute where state interpretation of its own ambiguous statute might serve to render it inoffensive to the federal Constitution. Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972).

The federal courts are not permitted otherwise, however, to shut their doors to a complaint of federal constitutional violation even if there is a possible state remedy which is being pursued. Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed.2d 510 (1913); Kasper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). In this last case the Supreme Court said:

If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary¹ or substantially modify the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction. Baggett v. Bullitt, 377 U.S. 360, 375-379, [84 S.Ct. 1316, 1324-1326, 12 L.Ed.2d 377]. Thus, “recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law.” England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415-416 [84 S.Ct. 461, 465, 11 L.Ed.2d 440],

Harman v. Forssenius, supra at 534-35, 85 S.Ct. at 1182.

With these principles in mind, we turn to an examination of the statute itself against the federal constitutional principles which are relied upon.

THE FIRST AMENDMENT

The First Amendment to the Constitution of the United States says in applicable part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

The Fourteenth Amendment to the Constitution of the United States says in applicable part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend XIV § 1.

We have previously indicated that the statute complained of does not directly forbid the teaching of evolution. It does, however, prohibit the selection of any textbook which teaches evolution unless it also contains a disclaimer stating that such doctrine is “a theory as to the origin and creation of man and his world and is not represented to be scientific fact.” And the same statute expressly requires the inclusion of the Genesis version of creation (if any version at all is taught) while permitting that version alone to be printed without the above disclaimer. (Section 2 of the statute quoted above says: “Provided, however, that the Holy Bible shall not be defined as a textbook, but is hereby declared to be a reference work, and shall not be required to carry the disclaimer above provided for textbooks.”) Furthermore, “the teaching of all occult or satanical beliefs of human origin is expressly excluded from this act,” presumably meaning that religious beliefs deemed “occult” or “satanical” need not be printed in biology texts along with the other theories.

We believe that in several respects the statute under consideration is unconstitutional on its face, that no state court interpretation of it can save it, and that in this case, the District Court clearly erred in abstaining from rendering a determination of the unconstitutionality of the statute on its face.

First, the statute requires that any textbook which expresses an opinion about the origin of man “shall be prohibited from being used” unless the book specifically states that the opinion is “a theory” and “is not represented to be scientific fact.” The statute also requires that the Biblical account of creation (and other theories of creation) be printed at the same time, with commensurate attention and equal emphasis. As to all such theories, except only the Genesis theory, the textbook must print the disclaimer quoted above. But the proviso in Section 2 would allow the printing of the Biblical account of creation as set forth in Genesis without any such disclaimer. The result of this legislation is a clearly defined preferential position for the Biblical version of creation as opposed to any account of the development of man based on scientific research and reasoning. For a state to seek to enforce such a preference by law is to seek to accomplish the very establishment of religion which the First Amendment to the Constitution of the United States squarely forbids.

We believe the provisions of the Tennessee statute are obviously in violation of the First Amendment prohibition on any law “respecting the establishment of religion” as that phrase has been authoritatively interpreted in Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), and Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

In Epperson the Supreme Court said:

In any event, we do not rest our decision upon the asserted vagueness of the statute. On either interpretation of its language, Arkansas’ statute cannot stand. It is of no moment whether the law is deemed to prohibit mention of Darwin’s theory, or to forbid any or all of the infinite varieties of communication embraced within the term “teaching.” Under either interpretation, the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis , by a particular religious group.

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The antecedents of today’s decision are many and unmistakable. They are rooted in the foundation soil of our Nation. They are fundamental to freedom.

Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.

As early as 1872, this Court said: “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” Watson v. Jones, 13 Wall. 679, 728 [80 U.S. 679, 20 L.Ed. 666.] This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment’s broad command.

Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional “values. On the other hand, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” Shelton v. Tucker, 364 U.S. 479, 487 [81 S.Ct. 247, 251, 5 L.Ed.2d 231] (1960). As this Court said in Keyishian v. Board of Regents, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.” 385 U.S. 589, 603 [87 S.Ct. 675, 683, 17 L.Ed.2d 629] (1967).

There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a state law to provide free bus service to school children, including those attending parochial schools, said: “Neither [a State nor the Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another.” 330 U.S. 1, 15 [67 S.Ct. 504, 511, 91 L.Ed. 711] (1947).

At the following Term of Court, in McCollum v. Board of Education, 333 U.S. 203 [68 S.Ct. 461, 92 L.Ed. 649] (1948), the Court held that Illinois could not release pupils from class to attend classes of instruction in the school buildings in the religion of their choice. This, it said, would involve the State in using tax-supported property for religious purposes, thereby breaching the “wall of separation” which, according to Jefferson, the First Amendment was intended to erect between church and state. Id., at 211 [68 S.Ct. 461 at 465]. See also Engel v. Vitale, 370 U.S. 421, 428 [82 S.Ct. 1261, 8 L.Ed.2d 601] (1962); Abington School District v. Schempp, 374 U.S. 203 [83 S.Ct. 1560, 10 L.Ed.2d 844] (1963). While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not. collide with- the First Amendment’s prohibition, the State may not adopt programs or practices in its public schools or colleges which “aid or oppose” any religion. Id., at 225 [83 S.Ct. 1560, 1573], This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma. As Mr. Justice Clark stated in Joseph Burstyn, Inc. v. Wilson, “the state has no legitimate interest in protecting any or all religions from views distasteful to them . . . .” 343 U.S. 495, 505 [72 S.Ct. 777, 782, 96 L.Ed. 1098] (1952). The test was stated as follows in Abington School District v. Schempp, supra, [374 U.S.] at 222 [83 S.Ct. at 1571]: “[W]hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.”

Epperson v. Arkansas, 393 U.S. 97, 103-05, 106-07, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). (Emphasis added.) (Footnotes omitted.)

In Lemon Chief Justice Burger said:

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Commission, 397 U.S. 664, 668 [90 S.Ct. 1409, 1411, 25 L.Ed.2d 697] (1970).

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 [88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060] (1968); finally, the statute must not foster “an excessive government entanglement with religion.” Walz, supra, [397 U.S.] at 674 [90 S.Ct. 1409, at 1414],

Lemon v. Kurtzman, 403 U.S. 602, 612—13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).

While the requirement of preferential treatment of the Bible clearly offends the Establishment Clause of the First Amendment, the exclusion at the end of Section 1 of the statute would inextricably involve the State Textbook Commission in the most difficult and hotly disputed of theological arguments in direct conflict with Chief Justice Burger’s third standard. Throughout human history the God of some men has frequently been regarded as the Devil incarnate by men of other religious persuasions. It would be utterly impossible for the Tennessee Textbook Commission to determine which religious theories were “occult” or “satanical” without seeking to resolve the theological arguments which have embroiled and frustrated theologians through the ages.¹

The requirement that some religious concepts of creation, adhered to presumably by some Tennessee citizens, be excluded on such grounds in favor of the Bible of the Jews and the Christians represents still another method of preferential treatment of particular faiths by state law and, of course, is forbidden by the Establishment Clause of the First Amendment.

We deem the two constitutional violations described above to be patent and obvious on the face of the statute and impossible for any state interpretation to cure. Under these circumstances, we find no need to determine whether the terms “occult” and “satanical” are, as claimed by appellants, also void for vagueness under the Due Process Clause of the Fourteenth Amendment. Nor for the same reason do we feel it is necessary or desirable to pass on appellants’ claims that the statute as drawn represents violation of the Freedom of Speech and Press Clauses of the First Amendment.

RELIEF

We have examined with interest the order entered by the Supreme Court, along with the jurisdictional statement filed by Tennessee in the Supreme Court and the response thereto filed by the plaintiffs. We believe that the order can properly be interpreted as indication that no three-judge District Court was necessary in this action under 28 U.S.C. § 2281 (1970) because, as we have determined above, this state statute is patently unconstitutional. See Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), and Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962).

We particularly note the similarity between the language vacating and remanding employed by the Supreme Court in Pennsylvania Public Utility Commission v. Pennsylvania Railroad Co., 382 U.S. 281, 86 S.Ct. 423, 15 L.Ed.2d 324 (1965), and the order entered in this case.

It may, however, be argued (as does the dissent) that the Supreme Court order might be interpreted as a holding that the Supreme Court lacked jurisdiction over a direct appeal from the order of abstention entered by the three-judge court in this case because the order was interlocutory and not one granting or denying preliminary injunctive relief. See, e. g., MTM, Inc. v. Baxley, - U.S. -, 95 S.Ct. 1278, 43 L.Ed.2d 636 (1975); Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974); Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970). As we see the matter, however, the abstention order did in effect deny preliminary injunctive relief and effectively shut the federal courthouse door upon plaintiffs in their search for timely vindication of their federal constitutional claims.

Such a denial of federal adjudication is peculiarly inappropriate when the constitutional claim rests upon the First Amendment to the United States Constitution. In a First Amendment case the United States Supreme Court noted:

In such a case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect. See Dombrowski v. Pfister, 380 U.S. 479, 486-487 [85 S.Ct. 1116, 1120-1121, 14 L.Ed.2d 22]; Baggett v. Bullitt, supra, at 378-379 [377 U.S. 360 84 S.Ct. 1316, at 1326, 12 L.Ed.2d 377 (1964)]; NAACP v. Button, supra, at 433 [371 U.S. 415 83 S.Ct. 328, at 338, 9 L.Ed.2d 405 (1963)]; Cf. Garrison v. Louisiana, 379 U.S. 64, 74-75 [85 S.Ct. 209, 215-216, 13 L.Ed.2d 125]; Smith v. California, 361 U.S. 147 [80 S.Ct. 215, 4 L.Ed.2d 205].

Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967).

The judgments of the District Court are vacated and the case is remanded for entry of an order dissolving the three-judge court and an order by the District Judge before whom the case was filed granting preliminary injunctive relief in accordance with this opinion.

1 . See “Satan” and “satanical,” 9 Oxford Eng. Dict. 116 (1933), and W. Woods, A History of The Devil (1973) to note how frequently differ-enees of religious opinions are accompanied by denunciation employing the terms “Satan” or “the devil.”