Oral arguments in the appeal in Selman v. Cobb County were heard by a three-judge panel in the 11th Circuit Court of Appeals in Atlanta, Georgia, on December 15, 2005. At issue is a decision issued by a lower court in January 2005, holding that the policy requiring evolution warning labels to be affixed to the biology textbooks used in Cobb County's public schools violated the Establishment Clause of the First Amendment. In his decision, Judge Clarence Cooper wrote, "the Court believes that an informed, reasonable observer would interpret the Sticker to convey a message of endorsement of religion. That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders."
Judge Ed Carnes, one of the most conservative judges on the 11th Circuit Court of Appeals, was reportedly critical of the lower court's ruling, describing the words of the label as "technically accurate" and contending that the Cobb County School Board was justified in requiring the sticker. The Los Angeles Times (December 16, 2005) quoted him as saying, "From nonlife to life is the greatest gap in scientific theory ... There is less evidence supporting it than there is for other theories. It sounds to me like evolution is more vulnerable and deserves more critical thinking." According to the Associated Press [Link is broken] (December 16, 2006), Jeffrey Bramlett, arguing for the American Civil Liberties Union and parents, cited the testimony of Brown University's Kenneth Miller, the author of the textbook used in Cobb County, who testified it would be misleading to say that evolution is not a fact.
Carnes also alleged that there were errors of fact in Cooper's decision and the ACLU's appeal brief. In particular, he took issue with the claim that a petition organized by a local creationist parent, Marjorie Rogers, affected the school board's decision to require the stickers, contending that the petition was dated six months after the decision. According to the Atlanta Journal-Constitution (December 16, 2005), however, it reported on March 29, 2002, that Rogers told the board about her petition at its March 28, 2002, meeting, which was the same meeting at which the board promised that students would be told that evolution is a theory, not a fact. Bramlett told the Fulton County Daily Report (December 16, 2005) that he would have "not too much" trouble in clarifying the sequence of events for the court.
It is not known when the panel -- comprising Carnes, Frank M. Hull and William H. Pryor Jr. -- will issue its decision, although the Los Angeles Times speculated that it will be in a few weeks. Michael Manely, who successfully argued that the stickers were unconstitutional in the 2004 trial, told the Times that the line of questioning during the oral arguments suggested that the judges might seek to overturn the ruling, commenting, "I'm certainly more worried than I was when I walked in this morning." But the Times also quoted Michael Broyde, director of the law and religion program at Emory University's law school, as saying that Judge Cooper "wrote a very crafty opinion" that relied extensively on the factual record. "District court facts are like mud," Broyde quipped: "They stick to you."