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10/30/80 Dale Crowley, Jr., v. Smithsonian Institution

October 30, 1980




Before TAMM and MacKINNON, Circuit Judges, and LOUIS F. OBERDORFER,* U. S. District Judge for the District of Columbia.


DALE CROWLEY, JR., Individually & in his capacity as

Executive Director of the National Foundation for

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-0641).



Appellants are an individual and two organizations, the National Foundation for Fairness in Education and National Bible Knowledge, Inc. They refer to their conception of the origin of life as "scientific creationism." They assert that by marshalling and interpreting data in a scientific way, they can support the proposition that human and other forms of life were brought into existence in completed form, all at one time, by a Creator. *fn1 They conscientiously disagree with the theory of evolution which postulates that all plant, animal, and human life "have arisen from a single source which itself came from an inorganic form." *fn2

Appellees are the Smithsonian Institution and two Smithsonian employees. Using federal funds, appellees planned (for 1979) and conducted (in 1978) two exhibitions containing references to evolution at the Smithsonian's Museum of Natural History (Museum). The exhibit presented at the Museum in 1978 was entitled "The Emergence of Man." The one planned for (and presumably completed in) 1979, contemplated using specimens from the Museum's collection to dramatize the diversity of life on Earth, the adaptation of plant and animal life to their environments, and the way in which organisms change over time in response to environmental and other influences.

Appellants sued in the United States District Court for the District of Columbia for a declaratory judgment that the Smithsonian's charter (20 U.S.C. § 41 et seq.) did not authorize the use of federal funds for such exhibits and that, if the charter did authorize such use of federal funds, the charter and the expenditures violated the first amendment's prohibition against the establishment of religion and inhibited appellants' free exercise of their religion. Appellants urged that by explaining and advocating the theory of evolution, appellees unconstitutionally supported the religion of Secular Humanism. *fn3 Appellants sought an injunction prohibiting the exhibits and federal funding of them or, in the alternative, an order requiring appellees to commit equal funds to explain creation along the lines of the Biblical account in Genesis.

Appellees moved in the District Court for dismissal or, in the alternative, for summary judgment on the grounds that (1) appellants lacked standing to challenge the statutory authority of the appellees, *fn4 (2) appellants constitutional argument was foreclosed by Supreme Court decisions authorizing public schools to teach evolution, (3) the evolution exhibits were essentially secular, did not primarily affect or advance religion nor excessively entangle government in it, and (4) the relief sought by appellants would itself violate the establishment clause.

Appellants opposed summary judgment as inappropriate. They disputed whether the exhibits were religious or secular, and whether evolution itself is a scientific theory in light of the fact that it cannot be proven in a laboratory. The District Court refused to accept appellants' description of evolution "as, and only as, part of the religion of secular humanism." Crowley v. Smithsonian Institution, 462 F. Supp. 725, 726 (D.D.C.1978). The District Court also noted that appellees do not themselves treat evolution as a religious matter nor have they explicitly expressed any hostility to religious theories of creation. It concluded from these facts that it could not accept the characterization of these issues as materially factual. Applying, then, the well-established test as it is stated in Tilton v. Richardson, 403 U.S. 672, 678, 91 S. Ct. 2091, 2095, 29 L. Ed. 2d 790 (1971), the District Court concluded that (1) appellees' "presentation of evolutionary theory has the solid secular purpose of "increasing and diffusing knowledge among men' " and that appellees do not "oppose or show hostility to religion" and do not "create a religion of secularism;" 426 F. Supp. at 727, (2) the exhibits neither advance a religious theory nor inhibit appellants in theirs; (3) neither the Smithsonian enabling legislation nor the exhibits involve excessive entanglement with religion; and (4) the appellants' free exercise of their religion is not actionably impaired merely because, should they visit the Smithsonian, they may be confronted with exhibits which are distasteful to their religion.

Appellants' appeal focuses specifically on whether there were genuine issues of material fact which precluded decision by summary judgment and whether the District Court viewed the inferences to be drawn from appellants' pleadings and affidavits in a light most favorable to appellants. Appellants claim both that the trial court should not have resolved by summary judgment the question of whether the exhibits were secular in nature as displaying scientific knowledge and that the trial court failed to draw the inferences necessary under the law as to "the religious nature of evolution and the preferred position given this religious belief system by appellees in violation of the First Amendment ...." Appellants' brief at p. 27. Appellees' response basically tracked and supported the trial court's memorandum. Satisfied that there were no material facts in dispute and that the trial court correctly decided the legal issues, we affirm. I.

The Smithsonian Institution was created by the Act of August 10, 1846, "to increase and diffuse knowledge among men." 20 U.S.C. § 41. The National Museum of Natural History is a bureau of the Smithsonian. The Museum is authorized to receive "all objects of art and of foreign and curious research, and all objects of natural history, plants, and geological and mineralogical specimens belonging to the United States ...." 20 U.S.C. § 50. This authority is governed by and in aid of the overriding charter of the Institution. 20 U.S.C. § 41. According to the uncontradicted affidavit of the Museum director, himself an appellee in this case, the Museum "is considered one of the world's major centers for the study of plants, animals, fossil organisms, terrestrial and extraterrestrial rocks and minerals, and man himself." *fn5

There has been no dispute about the physical elements of the exhibits in question. The exhibit planned for 1979 was to emphasize specimens from the Museum's collection depicting adaptations of plants and animals to their environment by such devices as camouflage, the overproduction of offspring and other defense mechanisms. It was to include an introductory display of a variety of specimens such as trays of bird eggs, mammal skulls, and jars of amphibians. App. at p. 62. There ...

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