The Establishment Clause in the First Amendment prohibits the State from imposing a national religion, a non-religion, or a religion over another religion. It was not until the later part of the 20th century though, possibly due to a rise in secularism, that the Court began to more strictly interpret what the Constitution was prohibiting (Sullivan and Gunther, 2007, 33-67). For example, in Board of Education of Kiryas Joel Village v Grumet (1994), a case surrounding the funding of a school district that was purposefully meant to coincide with the neighborhood boundaries of a religious group, the Court found that could constitute an unconstitutional aid to religion. Justice Souter summed up the issue as "the government should not prefer one religion to another, or religion to irreligion." (Board of Education of Kiryas Joel Village School District v Grumet, 1994). Despite the conservative years of the Regan and Bush administrations, and Congressional Passage of the 1993 Religious Freedom Restoration Act, the Court found in a 1997 case that not only could Congress not encourage legislation regarding religion, but that any Federal, State, or Local actions to the contrary were also unconstitutional (City of Boerne v Flores, 1997).

The issue of free speech and the ability of a group to exempt itself from the requirements of public education is at the heart of the issue of the question: can a group of religious fundamentalists petition the state to allow their children an exemption from school biology classes that, they believe, are contrary to their religious views (one would presuppose evolutionary theory?) First, an argument to exempt a child from a class would imply that if there was any part of the core curriculum that a parent might feel conflicted with a religious philosophy, the child would be able to opt out. So, if a religious group believed, as it states in the Old Testament, that the earth is the center of the universe, created in six days by a master being, then ostensibly the child could be exempt from geology, biology, and even mathematics. This is certainly contrary to the educational system, and also implies that a study is unable to think for themselves, treat theories as theories, and move beyond rhetoric into high levels of analysis and synthesis of information. Allowing fundamentalist groups to petition for exemption also opens the precedent for all sorts of cultural, behavioral and religious exceptions to any number of curriculum material. There is a long, and rather detailed history of the legal aspect of teaching evolution in the public school (see Appendix a), but for our purposes we will concentrate on three seminal cases that help define this specific issue.

One of the more significant Court victories won by a religious group, West Virginia State Board of Education v. Barnette, found that the Free Speech Clause in the First Amendment protected students from being forced