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Creation & Intelligent Design Watch
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Why is it Unconstitutional to Teach Intelligent Design?

By Jason Rosenhouse

On December 20, 2005, federal judge John Jones handed down his decision in the case Kitzmiller, et al v. Dover Area School District, et al. For supporters of evolution, the decision was a welcome Christmas present. For defenders of Intelligent Design (ID), it was a devastating legal setback.

Weighing in at 139 pages, Judge Jones’ ruling is a formidable document. Despite its length and its occasional descent into Legalese, it makes for surprisingly fast-paced and stimulating reading. I recommend reading the whole thing. Nonetheless, my intention in this essay is to provide a condensed version of all the major points and arguments it contains. The decision will no doubt be the focus of much commentary in the weeks to come, much of it by partisans trying to spin its contents for purposes of their own. Assessing the merits of such commentary will be easier armed with a firm grasp of precisely what it says.

Throughout this essay I will refer to Judge Jones as “the Court.” Furthermore, I will omit all footnotes and citations from the direct quotations I use.

The decision begins with a summary of the basic facts in the case. The facts are these: On October 18, 2004, the Dover Area School District (the Defendants) passed a resolution stating, “Students will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught.” On November 19, 2004, the District announced that starting in January of 2005, teachers would be required to read the following statement to ninth grade biology students:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

On December 14, 2004, the Plaintiffs, a group of parents and educators from the affected region, filed suit. It was their allegation that the district’s ID policy constituted an establishment of religion, thereby running afoul of the first amendment to the Constitution (p. 1-7).

From here the decision devotes several pages to ancillary issues: Establishing that the Court has jurisdiction, introducing the Plaintiffs and Defendants, and describing a few relevant legal precedents. (p. 7-9)

Next up is a determination of the proper legal standard to apply in this case. The Court concludes that there are two relevant tests to apply in determining if the ID policy is unconstitutional: The Lemon test and the endorsement test. The former is named for the 1971 Supreme Court case Lemon v. Kurtzman and holds that a state action is unconstitutional if it violates any of the following three prongs: (1) The statute must have a secular legislative purpose; (2) Its principal or primary effect must be one that neither advances nor inhibits religion; (3) The statute must not foster an excessive government entanglement with religion. The endorsement test arises from a 1989 Supreme Court decision and holds that the state action must not constitute an endorsement of religion. In its discussion of this issue, the Court rejected an argument from the Defense that the endorsement test should not apply (p. 9-14).

So how does the ID policy fare with respect to the endorsement test? To answer this question, the Court provides a thorough discussion of relevant caselaw. It notes,

The test consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy’s language, origins and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose.” (p. 15)
There follows some discussion of what constitutes a reasonable, objective observer (p. 16-18).

The Court’s first finding in this regard is that, “An objective observer would know that ID and teaching about “gaps” and “problems” in evolutionary theory are creationist, religious strategies that evolved from earlier forms of creationism (p. 18).” To justify this conclusion the Court provides several pages of relevant legal and social history. Of particular importance here is the famous 1982 case McLean v. Board of Ed. of Arkansas, it was found unconstitutional to mandate equal time for creation science whenever evolution is taught. One finding in McLean was that creationists relied on a “contrived dualism” in which any legitimate criticism of evolution was viewed as evidence in favor of creation. The Court in the present case will later find that ID suffers from the same defect.

Based on this history, the Court finds that a reasonable observer would quickly perceive the religious nature of ID. He cites the testimony of theologian John Haught to the effect that ID is merely an updated version of the religion-based, natural theology of Reverend William Paley from the nineteenth century. Further, Defense witnesses Scott Minnich and Michael Behe (scientists both) agreed with this characterization.

Next comes the testimony of philosopher Barbara Forrest, for the Plaintiffs, who documented the numerous religious statements made by ID proponents over the years. The Court devotes two pages to these quotes, concluding with the following statement,

Moreover, in turning to Defendants’ lead expert, Professor Behe, his testimony at trial indicated that ID is only a scientific, as opposed to a religious, project for him; however, considerable evidence was introduced to refute this claim. Consider, to illustrate, that Professor Behe remarkably and unmistakably claims that the plausibility of the argument for ID depends upon the extent to which one believes in the existence of God. As no evidence in the record indicates that any other scientific proposition’s validity rests on belief in God, nor is the Court aware of any such scientific propositions, Professor Behe’s assertion constitutes substantial evidence that in his view, as is commensurate with other prominent ID leaders, ID is a religious and not a scientific proposition. (p. 28)
Then we have a discussion of the Discovery Institute’s famous “Wedge” document, which outlines their strategy for using ID as a wedge for overthrowing the materialistic biases of modern science. This, in turn, is followed by a discussion (based on the testimony given at trial) of ID’s reliance on a supernatural designer. This discussion is especially important given the frequent insistence of ID proponents that there is no such reliance.

Also key in this regard was the ID textbook Of Pandas and People. The Plaintiff’s were able to show that while early drafts of the book made frequent reference to creationism, in later drafts those references were summarily replaced with the term “intelligent design.” This, along with other evidence, showed that ID is the “progeny” of creationism.

In total there are eighteen pages in the opinion given over to defending the conclusions described above. (p. 18-36)

From here the Court takes up the question of whether an objective student would view the disclaimer as an official endorsement of religion. After spending a few pages explaining why this question needs to be considered separately from the previous discussion of what a reasonable observer would conclude, the Court concludes “that an objective student would view the disclaimer as a strong official endorsement of religion (p. 36).

This conclusion is based primarily on a detailed textual analysis, supported by testimony from Plaintiff’s experts, of the ID disclaimer itself. This analysis takes up five pages (p. 39-44). Supplementary evidence in this regard was the fact that it was administrators, not teachers who read the statement (the teachers summarily refused to read it), and the nature of the “opt-out” feature, whereby students, with a parent’s permission, could opt-out of hearing the statement. Also important were the expressly religious terms in which various Board members defended their ID policy in public forums. Near the end of this section, the Court sums up its objections:

In summary, the disclaimer singles out the theory of evolution for special treatment, misrepresents its status in the scientific community, causes students to doubt its validity without scientific justification, presents students with a religious alternative masquerading as a scientific theory, directs them to consult a creationist text as though it were a science resource, and instructs students to forego scientific inquiry in the public school classroom and instead to seek out religious instructions elsewhere. (p. 49)
The finding that a reasonable Dover high school student would perceive a clear religious endorsement in the ID policy is followed by a section showing that an objective Dover citizen would come to the same conclusion. This finding is supported in the opinion by fourteen pages of evidence (p. 50-64). Especially interesting, in my opinion, was the Court’s reliance on the nature of the editorials and letters to the editor published in the local newspapers. The Court notes that these publications framed the debate in entirely religious terms. The Defense objected (strenuously, according to the opinion) to this line of evidence, but the Court allowed it for its probative value in assessing how an objective Dover resident would view the situation. Several pages of discussion about relevant legal precedents are provided in support of this conclusion.

The Court next turns to what in my view is the most significant part of the decision: the finding that ID is not science. The Court explains the importance of determining the scientific status of ID with characteristically withering language:

While answering this question compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. (p. 63)
The ensuing discussion occupies twenty-six pages (p. 64-90), but it is such a devastating indictment of ID that I believe it is worthwhile to consider it in detail.

The Court begins with a clear statement of its conclusions:

After a searching review of the record and applicable case law, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are (1) ID violates the centuries-old ground rules of science by invoking an permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed an illogical contrived dualism that doomed creation science in the 1980’s; and (3) ID’s negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research. (p. 64)
The evidence supporting item one above comes from several sources. The Court first refers to the testimony of Plaintiff’s experts John Haught (a theologian), Kenneth Miller (a biochemist) and Robert Pennock (a philosopher), in providing a brief history of what is considered proper scientific methodology. He then refers to the opinion of the National Academy of Sceinces in support of their conclusions.

As mentioned earlier, the Court had already found that ID does, indeed, rely on supernatural intervention. At this point it reinforces that conclusion by referring to the ID textbook Of Pandas and People, as well as to portions of expert testimony from the Defense. In particular, he pointed to the desire of ID proponents to change the ground rules of science to allow the supernatural, something previous courts have recognized to be an inherently religious concept.

In this regard the Court was also persuaded by the fact that, “…every major scientific association that has taken a position on the issue of whether ID is science has concluded that ID is not, and cannot be considered as such (p. 69).” The Court’s reliance on this point reveals the importance of major scientific organizations taking stands on this issue.

The Court next presents the evidence for item two above. Particularly telling here is the following statement:

ID proponents primarily argue for design through negative arguments against evolution, as illustrated by Professor Behe’s argument that “irreducibly complex” systems cannot be produced through Darwinian, or any natural, mechanisms. However, we believe that arguments against evolution are not arguments for design. Expert testimony revealed that just because scientists cannot explain today how biolgoical systems evolved does not mean that they cannot, and will not, be able to explain them tomorrow. As Dr. Padian aptly noted, “absence of evidence is not evidence of absence.” To that end, expert testimony from Drs. Miller and Padian provided multiple examples where Pandas asserted that no natural explanations exist, and in some cases that none could exist, and yet natural explanations have been identified in intervening years. It also bears mentioning that as Dr. Miller stated, just because scientists cannot explain every evolutionary detail does not undermine its validity as a scientific theory as no theory in science is fully understood. (p. 71)
This comes near the beginning of a multi-page analysis of “irreducible complexity (IC),” an analysis that relies heavily on Michael Behe’s testimony at trial. The Court argues that IC is vaguely defined by Behe, is only a negative argument against evolution and not a positive argument for design, and is not even a valid criticism of evolution since current theory contains mechanisms capable of producing such complex systems. There follows more references to expert testimony to back up these conclusions.

Personally, I was especially impressed with the Court’s excellent handling of specific cases like the bacterial flagellum, the blood-clotting cascade and the immune system. A representative quotation from this portion of the opinion is the following:

However, Dr. Miller presented peer-reviewed studies refuting Professor Behe’s claim that the immune system was irreducibly complex. Between 1996 and 2002, various studies confirmed each element of the evolutionary hypothesis explaining the origin of the immune system. In fact, on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty-eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that is was not “good enough.” (p. 78)
In the final portion of this part of the decision, the Court takes up the claim, offered by the Defense, that a “purposeful arrangement of parts,” suggests design. In the course of explaining why this is false, the Court writes, “Although both Professors Behe and Minnich assert that there is a quantitative aspect to the inference, on cross-examination they admitted that there is no quantitative criteria for determining the degree of complexity or number of parts that bespeak design, rather than a natural process (p. 82).” I found this especially interesting, since such quantitative criteria are precisely what ID proponent William Dembski claims to have produced. Yet the Defense’s own witnesses did not defend Dembski’s methods when they had a clear opportunity for doing so.

The Court concludes its discussion of the scientific merits of ID with a brief discussion of some clear scientific distortions found in Pandas, and the inability of ID folks to produce peer-reviewed publications. He closes the section as follows:

To conclude and reiterate, we express no opinion on the ultimate veracity of ID as a supernatural explanation. However, we commend to the attention of those who are inclined to superficially consider ID to be a true “scientific” alternative to evolution without a true understanding of the concept the foregoing detailed analysis. It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science. (p. 89)
Everything up to this point has related to the Court’s application of the endorsement test to the ID policy. There is still the Lemon test to consider. I previously laid out the three prongs of the test. In applying the test, courts typically refer to the first prong as relating to purpose, while the second and third prongs relate to the effect of the state action in question.

The Court begins its purpose inquiry with the obligatory discussions of relevant precedents and legal standards. Its conclusion is then summarized as follows:

The disclaimer’s plain language, the legislative history, and the historical context in which the ID Policy arose, all inevitably lead to the conclusion that Defendants consciously chose to change Dover’s biology curriculum to advance religion. We have been presented with a wealth of evidence which reveals that the District’s purpose was to advance creationism, an inherently religious view, both by introducing it directly under the label ID and by disparaging the scientific theory of evolution, so that creationism would gain credence by default as the only apparent alternative to evolution, for the reasons that follow. (p. 93)
There follows thirty-nine pages (p. 93-132) of painstaking argument justifying the above conclusion. These pages are devoted almost entirely to a detailed reconstruction of the School Board’s statements and actions during the relevant time period, based on the testimony and exhibits presented at trial. At several points in this discussion, the Court states explicitly that various Board members, in their testimony for the Defense, were inconsistent or blatantly dishonest. Two representative quotations are this:
Finally, although Buckingham, Bonsell, and other defense witnesses denied the reports in the news media and contradicted the great weight of the evidence about what transpired at the June 2004 Board meetings, the record reflects that these witnesses either testified inconsistently, or lied outright under oath on several occasions, and are accordingly not credible on these points. (p. 105)
and this:
As we will discuss in more detail below, the inescapable truth is that both Bonsell and Buckingham lied at their January 3, 2005 depositions about their knowledge of the source of the donation for Pandas, which likely contributed to Plaintiffs’ election not to seek a temporary restraining order at that time based upon a conflicting and incomplete factual record. This mendacity was a clear and deliberate attempt to hide the source of the donations by the Board President and the Chair of the Curriculum Committee to further ensure that Dover students received a creationist alternative to Darwin’s theory of evolution. We are accordingly presented with further compelling evidence that Bonsell and Buckingham presented with further compelling evidence that Bonsell and Buckingham sought to conceal the blatantly religious purpose behind the ID policy. (p. 115)
In summarizing this portion of the opinion, the Court writes:
We initially note that the Supreme Court has instructed that while courts are “normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham. Although the Defendants have consistently asserted that the ID policy was enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking skills, the Board took none of the steps that school officials would take if these stated goals had truly been their objective. The board consulted no scientific materials. The board contacted no scientists or scientific organizations. The Board failed to consider the views of the District’s science teachers. The Board relied solely on legal advice from two organizations with demonstrably religious, cultural, and legal missions, the Discovery Institute and the TMLC. Moreover, Defendants’ asserted secular purpose of improving science education is belied by the fact that most if not all of the Board members who voted in favor of the biology curriculum change conceded that they still do not know, nor have they ever known, precisely what ID is. To assert a secular purpose against this backdrop is ludicrous. (p. 131)

The penultimate legal question to be resolved relates to the effect prong of the Lemon test. Unsurprisingly given its previous findings, the Court finds the ID policy violated this prong as well. The Court begins this section by noting that since the ID policy has already been found unconstitutional under the endorsement test and the first prong of the Lemon test, they include the effect analysis for the sake of completeness. After a brief consideration of relevant precedents related to such analysis, the Court concludes that the ID policy runs afoul of this prong as well.

The final legal issue revolves around the Plaintiffs’ contention that the ID policy is also a violation of the Pennsylvania state constitution. The Court agreed with this contention.

I will conclude this summary with the following extensive quotation from the Court’s conclusion:

The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Borad’s ID policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.

To be sure, Darwin’s theory of evolution is imperfect. However, the fact that scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions.

The citizens of the Dover area were poorly served by the members of the Board who voted for the ID policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID policy. (p. 136-137)

In reading over the entire opinion I was struck by the extent to which Judge Jones’ arguments parallel those scientists have been making for years. I suspect that prior to this case, Jones had never immersed himself in the minutiae of the evolution/ID dispute. In the course of the trial both sides had the opportunity to put their best foot forward in making their points. And in the end, it was clear to Jones that all of the good arguments were on the side of evolution, and not on the side of ID.

This, you see, is what happens when the facts for both sides are presented in a forum dominated by facts and evidence, as opposed to theater and rhetoric. Creationists and ID proponents are constantly taunting evolutionists with the charge that we are afraid to confront their arguments publicly. The result of this trial shows what nonsense that really is. Scientists are rightly skeptical of any venue in which the creationist penchant for flashy presentations and dishonest portrayals of science are free to dominate. But on a genuinely level playing field, evolution will win every time.

The full 139 page document can be found at this link: http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf

Jason Rosenhouse is the author of EvolutionBlog, providing commentary on developments in the endless dispute between evolution and creationism.

©2005 CSICOP

(Original at http://www.csicop.org/intelligentdesignwatch/dover.html )


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