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Prof. Joseph Knippenberg of Oglethorpe University has written a wonderfully insightful essay on the Cobb County evolution textbook disclaimer case for the American Enterprise Online. At the end of the essay, Knippenberg concludes:
One begins to wonder whether liberal toleration is a sham, offered only to the most docile, and whether liberalism isn’t itself the very sort of orthodoxy it claims to eschew.
You can read the essay here.
Note: This is the fourth part of a multi-part series. You can read the first three installments here and here and here.
Some in the newsmedia have been attempting to portray Judge Jones as a conservative Republican who is devoutly religious. Frankly, I don't care whether Judge Jones is either conservative or religious. My concern is whether he is fair and accurate as a judge. But I do object to the media's attempt to reinvent Judge Jones in order to insulate his decision from criticism. The media are cultivating the impression that Judge Jones must have been fair and impartial (his sloppy and biased opinion notwithstanding) because he is a deeply-religious conservative who should have been initially sympathetic to the school board and intelligent design.
In reality, there is very little evidence to suggest that Jones is particularly conservative.
According to news reports, Judge Jones has described his political mentor as Tom Ridge, a fairly liberal "pro-choice" Republican. Moreover, according to information Judge Jones supplied to the Senate Judiciary Committee during his confirmation hearings in 2002, after graduating from college he never became a member of any conservative group, unless one counts the Boy Scouts. He did, however, join the trial lawyers association. He also was a 20+ year member of a country club. Thus, it might be appropriate to call him a "country club Republican."
In addition, Judge Jones does not seem in sync with most conservatives' attitudes toward crime and punishment. During his confirmation hearings, he spoke with pride about defending a murderer of a twelve-year old boy and how he was able to get the murderer spared from the death penalty:
I served for 10 years, Madam Chairwoman, as an assistant public defender in Schuylkill County, and so very frequently I found myself enmeshed in unpopular areas representing unpopular people. In particular, in 1989, I represented an individual who was alleged to have murdered a 12-year-old boy. It was, as you can imagine, coming from a small town, a highly charged atmosphere. We had a week-long trial. I represented him throughout in a most difficult circumstance, with the community at large very much against him. He was convicted. I was able to keep him from suffering the death penalty in that case... I was very proud to do that as an assistant public defender consistent with my obligations as an attorney.
(Note: You can verify for yourself the above information about Judge Jones' memberships and his comments at his confirmation hearing by going to the U.S. Government Printing Office and downloading the pdf version of S. HRG. 107–584, PT. 4, Confirmation Hearings on Federal Appointments, U.S. Government Printing Office, 2003, Serial No. J–107–23. See especially pp. 73 and 191-192.)
In the area of religion, Judge Jones is a long-time member of a Lutheran church in Pottsville, Pennsylvania. But his views on religion seem to be of the decidedly liberal variety and rather inhospitable to the views of more traditional believers. In a graduation speech to the students of Dickinson College in 2006, for example, he praised America's Founders for supposedly believing that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry."
This amazing statement is worthy of further analysis. First, it falsely suggests that people must choose between believing in religious authority (such as the Bible) and "free, rational inquiry." Second, the statement implies that those who believe in the Bible or the teachings of their church are somehow anti-American because they reject the ideals of America's Founders.
In reality, and contrary to Judge Jones, most of America's Founders did not believe that the teachings of the Bible or churches were in conflict with the teachings of "free, rational inquiry." Indeed, as I argue in my book, The Politics of Revelation and Reason, the Founders generally believed that revelation and reason converged on same truths, especially in the area of morality. The Founders' belief in the agreement of revelation and reason supplied the basis for all citizens to enter the public square on an equal basis, regardless of their religious beliefs. In the Founders' system, so long as religious believers could offer secular reasons for their public policy proposals in addition to whatever religious reasons they might have, they had the right to be heard.
However, by insisting that belief in religious authority and belief in (secular) "rational inquiry" are opposed to each other, Judge Jones sets the stage for depriving traditional religious believers of their equal rights as citizens. If public policies must be justified in terms of secular reason, and if religious traditionalists are by definition opposed to this sort of "free, rational inquiry," then anything religious traditionalists propose must be constitutionally suspect according to Judge Jones.
Hence, if certain intelligent design proponents happen to be traditional religious believers, their policy ideas must be disqualified no matter what the secular reasons they offer for them--because by definition those secular reasons cannot be genuine. This false dichotomy between faith and reason owes more to the French Enlightenment than the American Founding. And it explains far more about the inspiration behind Judge Jones' faulty ruling than the fact that he is a "church-going Republican."
[UPDATED ON OCTOBER 28, 2006]
Michael Medved interviewed Stephen Meyer, program director for the Discovery Institute's Center for Science and Culture, for an hour on his national radio program recently. The audio recording is here.
Also, Granville Sewell, a mathematics professor at Texas A&M University, has a stimulating critique of Neo-Darwinism at The American Spectator. [Updated] Sewell's mathematics textbook was recently published by a major science publisher as part of a series titled "Pure and Applied Mathematics: A Wiley-Intersciences Series of Texts, Monographs, and Texts." The textbook reprints Sewell's essay "Can 'ANYTHING' Happen in an Open System?," which challenges the neo-Darwinian veiw that mutations and natural selection "can create order out of disorder, and even design human brains with human consciousness."
Note: This is the third part of a multi-part series. You can read the first two installments here and here.
In his decision in the Dover intelligent design case, Judge Jones places great weight on the early intelligent design textbook Of Pandas and People published by the Foundation for Thought and Ethics (FTE). According to Judge Jones, early drafts of this textbook supposedly show that intelligent design is merely repackaged creationism. However, Judge Jones seriously misrepresents the facts about Of Pandas and People, and he also misapplies the relevant legal standards.
Before addressing the merits of Judge Jones' assertions regarding Pandas, something needs to be said about the legal and ethical propriety of Judge Jones placing so much weight on this early textbook in his judicial opinion. Frankly, it is astounding that Judge Jones treats Pandas as central to his decision given that he refused to grant the book's publisher, the Foundation for Thought and Ethics, permission to intervene in the case in order to defend itself.
Earlier this year when it became evident that the ACLU was trying to put Pandas on trial just as much as the Dover School Board, the Foundation for Thought and Ethics sought to intervene in the case so that it could defend itself. FTE wanted to cross-examine the ACLU's witnesses as well as present its own experts, evidence, and arguments during the trial. Yet Judge Jones rejected FTE's motion for intervention. FTE was eventually allowed to submit a "friend of the court" brief to Judge Jones, but such briefs do not have the same status as evidence and arguments presented at trial, and the brief was limited to no more than 5,000 words (including footnotes). That's right, Judge Jones allowed FTE a mere 5,000 words to rebut literally hundreds of pages of testimony and allegations made by the ACLU. How is that for fair and impartial justice? Given Judge Jones' explicit refusal to allow FTE to present a defense in the Dover case, his condemnation of FTE's textbook was grotesque.
Regarding the substance of Judge Jones' critique of Pandas, one would do well to read the amicus brief filed by FTE in the case. The FTE brief clearly demonstrates (1) that the published versions of Pandas do not promote creationism; (2) that the early drafts of Pandas did not promote "creationism" as it has been defined by the Supreme Court; and (3) that even if early drafts of Pandas did promote creationism in the eyes of Judge Jones, those drafts should be legally irrelevant. FTE's full brief (including footnotes and appendices with supporting documentation) can be downloaded here and here.
AMICUS BRIEF FILED BY THE FOUNDATION FOR THOUGHT AND ETHICS (excerpts)
I. INTELLIGENT DESIGN, AS DESCRIBED IN PANDAS, DIFFERS FROM CREATIONISM IN BOTH METHODOLOGY AND
PROPOSITIONAL CONTENT.
A. Intelligent Design, As Described In Pandas, Bases Its Claims On Empirical Evidence And Scientific Methods Rather Than Upon Faith, Doctrine, Or Scripture.
Creationism is identified by its reliance upon religious scripture and doctrine, rather than empirical evidence. By contrast, the theory of intelligent design, as developed in Pandas, relies upon scientific data and does not address religious or doctrinal questions. Pandas infers design using observations, uniform experience, and empirical experimental evidence: "If experience has shown that a certain class of phenomena results from intelligent causes and then we encounter something new but similar, we conclude its origin also to be from an intelligent cause." Pandas consistently takes this empirical approach and nowhere relies upon faith, doctrine, or religious scripture.
B. Intelligent Design, As Described In Pandas, Is Distinct From Creationism Because It Does Not Use Science To Postulate A “Supernatural Creator,” Nor Does It Attempt To Validate The Biblical Account In Genesis.
Plaintiffs contend that teaching intelligent design endorses religion. The endorsement test, as adopted by the Supreme Court, employs an objective component where a statement cannot be taken in isolation but must be read in its entire context: "The meaning of a statement to its audience depends both on the intention of the speaker and on the "objective" meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker's intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker." Plaintiffs ignore the context in Pandas explaining how intelligent design cannot identify the designer as well as Pandas’ emphasis on empirical data.
1. Pandas Demonstrates That Intelligent Design Takes A Scientific Approach Which Cannot Identify The Designer.
In Edwards, the Supreme Court held that creation science entailed the “religious viewpoint” that “a supernatural creator was responsible for the creation of humankind.” Plaintiffs try to force the square peg of design into the round hole carved by Edwards, falsely asserting that Pandas postulates a “supernatural entity.” Yet Pandas clearly states that the scientific theory of intelligent design cannot address questions about the ultimate nature of the intelligent cause: "But what kind of intelligent agent was it? On its own, science cannot answer this question; it must leave it to religion and philosophy." "We should recognize, however, that if we go further, and conclude that the intelligence responsible for biological origins is outside the universe (supernatural) or within it, we do so without the help of science." Because it does not delve into questions surrounding the supernatural, Pandas does not violate methodological naturalism (as espoused by plaintiffs).
Moreover, the Pandas edition used in Dover explicitly disclaims endorsement of Christianity: "Advocates of design have included not only Christians and other religious theists, but pantheists, Greek and Enlightenment philosophers and now include many modern scientists who describe themselves as religiously agnostic. Moreover, the concept of design implies absolutely nothing about beliefs normally associated with Christian fundamentalism, such as a young earth, a global flood, or even the existence of the Christian God." This context makes it clear that Pandas does not endorse any particular religious belief, including Christianity. All design implies is “life had an intelligent source.”
2. Plaintiffs Mistakenly Contrast Natural Causes With Supernatural Causes, Rather Than With Intelligent Causes.
In an attempt to attack the scientific basis of the theory of intelligent design, plaintiffs claim that the only alternative to explanation by natural causes is an appeal to supernatural causes. Pandas offers two distinct categories of scientific explanation: natural and intelligent. Pandas carefully distinguishes between “supernatural” causes and “intelligent” causes, for intelligent causes are amenable to scientific investigation, whereas it is impossible to detect whether a cause is “supernatural.” The distinction between intelligent and supernatural causes is a critical one, and it was adopted by FTE before the decision in Edwards, as reflected in early drafts of Pandas. If plaintiffs were correct, Pandas should not explain design using examples of intelligent, yet non-supernatural causes. But Pandas offers many such examples, including human writers, artists, skywriters, car manufacturers, carpenters, tribespeople, and engineers. In short, the intelligent aspect of a cause is detectable, while supernatural identity is not: if an intelligent cause is indeed supernatural, its identity as such cannot be determined via science. Pandas explains that we have everyday experience with detecting intelligence; thus, intelligent design is not an untestable supernatural concept.
3. Statements About A “Master Intellect” Do Not Endorse Religion.
Plaintiffs argue that appealing to a “master intellect” entails a deity. Yet the appropriate dictionary definition of “master” has no religious overtones: "being a master of some occupation, art, etc.; eminently skilled a master diplomat; a master pianist." Pandas refers to the “master intellect” in terms of the designer’s ability to design sophisticated biological molecules. An early draft of Pandas observes: "Some master intellect is the creator of life. But such observable instances of information cannot tell us if the intellect behind them is natural or supernatural. This is not a question that science can answer."
The claim that the complex information in biological organisms is best explained by an intelligent source is no more “ultimate” in its reach than the claim of Neo-Darwinism that all life results from random mutation and natural selection. What matters is not the degree of “ultimacy” but whether the claim is one that science can address. “Thus the so-called ‘Big Bang’ theory, an astronomical interpretation of the creation of the universe, may be said to answer an ‘ultimate’ question, but it is not, by itself, a ‘religious’ idea.” Similarly, intelligent design interprets biological data as sharing the same informational content found in human language and machines. Like Big Bang cosmology or Neo-Darwinism, the theory of intelligent design in biology is not religious because it lacks “comprehensiveness” and is “generally confined to one question.”
4. Pandas Does Not Advocate “Creation Ex Nihilo” And Advocates A View Of The Fossil Record Consistent With That Of Paleontologists.
The phrase “creation ex nihilo” exists nowhere in Pandas. Nonetheless, plaintiffs complain that Pandas advocates “abrupt appearance,” which they claim is equivalent to “creation ex nihilo.” Pandas states that “[i]ntelligent design means that various forms of life began abruptly through an intelligent agency….,” but this language is a comment on the fossil record, not a theological assertion. It is also a commonplace observation among paleontologists. For example, Stephen Jay Gould wrote: “The fossil record with its abrupt transitions offers no support for gradual change . . . transitions between major groups are characteristically abrupt.” [emphasis added]. True, creationism also defined itself in terms of abrupt appearance, but simply because Pandas shared this view with creationists no more renders it a form of creationism than does Stephen Jay Gould’s observation render him a creationist. Moreover, in Edwards, the Supreme Court declared creationism religion because it required the “supernatural”; “abrupt appearance” had no influence upon the majority’s constitutional analysis, no doubt because of the number of mainstream paleontologists who hold similar views.
5. Pandas Does Not Promote A View Parallel To Genesis.
While Edwards took a broad view of creationism, the Court cited extensively to McLean, which found that “the parallels between [creationism] and Genesis are quite specific." These parallels include: "(1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds." Two concurring Justices in Edwards observed that McLean recognized that creationist organizations require commitment to specific religious tenets, including the view that all life was created “by direct creative acts of God during Creation Week as described in Genesis” and “accept[ance] of Jesus Christ as our Lord and Savior.” Pandas promotes nothing even approximating these viewpoints.
Pandas makes no reference to a flood or worldwide geological catastrophe. Pandas never takes the viewpoint that life or the earth were created recently, and at various points incorporates a conventional geological time scale. Pandas makes no references to Genesis or Christian religious doctrines. It does not claim that life was created “out of nothing” and does not even explore questions about the origin of the universe. While the textbook does question, on scientific grounds, the ability of mutation and selection to account for the complexity of life and at other points questions common ancestry of all living organisms, these views in themselves do not constitute a religious viewpoint and indeed are advocated by a number of scientists in mainstream scientific literature.
III. REJECTION OF THE LANGUAGE OF EARLY DRAFTS OF PANDAS CLEARLY DISTINGUISH INTELLIGENT DESIGN FROM CREATIONISM.
Plaintiffs allege that unpublished draft versions of Pandas provide evidence that the “real” purpose of the published book is to promote “creationism” and “creation science.” But this claim rests on faulty logic and a misrepresentation of the content of these draft versions.
A. Early, Unpublished Drafts Of Pandas Have No Bearing Upon What Students Learn In Schools Today.
It is puzzling, to say the least, that Plaintiffs should rely upon early drafts of Pandas, in light of the burden on Plaintiffs to show that either of the first two prongs of the Lemon test have been violated. Unless either the school board, the teachers or the students were aware of the early drafts of Pandas, it is hard to see how their content could be in any way relevant to the question of whether the school board’s actions had a secular purpose, or had a primary effect of advancing or inhibiting religion. Perhaps plaintiffs recognized that what is presented in the book actually adopted by the school board does not support their claim of unconstitutionality—and so they shift attention to an earlier unused version. But the earlier version was never adopted by the school board and will never be seen by students. Amicus thus urges that only the published version of Pandas is germane, and that previous drafts be ignored.
B. The Removal Of “Creationist” Terminology From The Published Version Of Should Be Interpreted As A Rejection Of Creationism, Not As Hidden Support For Creationism.
Assuming, ad arguendo, that the Court looks to previous drafts of Pandas to interpret its meaning, however, Amicus urges the Court to draw precisely the opposite conclusions from those advanced by Plaintiffs. Admittedly there are no canons of “textbook interpretation”; however, using canons of construction employed in interpreting statutes, language removed from an earlier draft of statute is usually understood as a rejection of that language. For example, “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Similarly, in comparing a previous version of legislation that was vetoed to the bill that was ultimately enacted into law, the Supreme Court interpreted the removal of language about retroactivity to mean that Congress intended not to make the law retroactive. Finally, this same form of reasoning is normative among scholars of constitutional law, who refer to language rejected from drafts of constitutional amendments in order to determine what was not the intent of the Framers. If the Court were to apply this canon of construction to Pandas, then the fact that published versions of Pandas removed mention of “creationism” should indicate that textbook authors did not intend to promote creationism.
C. A Similar Rule Applied to Plaintiffs’ Own Expert’s Publication Would Disqualify Dr. Kenneth Miller’s Textbook.
Plaintiffs claim that references to “creation” and “creationists” deleted from pre-publication drafts of Pandas establish the equivalence of intelligent design and creationism. Yet the first two editions of a biology textbook actually published by plaintiffs’ expert Dr. Kenneth Miller explicitly affirmed the anti-religious claim that Darwinian theory “required” belief in philosophical materialism: "Darwin knew that accepting his theory required believing in philosophical materialism, the conviction that matter is the stuff of all existence and that all mental and spiritual phenomena are its byproducts... Suddenly, humanity was reduced to just one more species in a world that cared nothing for us... Worst of all, there was no divine plan to guide us."
Dr. Miller was quick to point out that later versions of his textbooks removed such anti-religious statements. But if unpublished drafts—never seen by the school board or students—evidence the “real meaning” of Pandas, what should be the significance of language that Dr. Miller actually published? Plaintiffs’ attempt to rely on pre-publication drafts of Pandas not only ignores the context in which the constitutional issues in this case arise, but threatens to open a floodgate to lawsuits challenging the “hidden agenda” of textbooks widely used by students today.
D. Early Drafts Of Pandas Did Not In Fact Advocate Creationism As It Has Been Defined By The Supreme Court.
While certain early drafts of Pandas and other writings may have used the terms “creation” and “creationists,” it is clear that these terms were defined to mean something quite different from “creationism” as later defined by the Supreme Court. As noted earlier, from the beginning Pandas specifically rejected the view that science could detect whether the intelligent cause identified was supernatural. Although the process by which an intelligent agent produces a designed object can loosely be called a “creation” (as in stating that this brief was the “creation” of several lawyers), the authors of Pandas clearly understood that this was a “placeholder” for a more sophisticated expression of this concept. A pre-Edwards draft from early 1987 emphatically stated that “observable instances of information cannot tell us if the intellect behind them is natural or supernatural. This is not a question that science can answer.” The same early draft rejected the eighteenth century design argument from William Paley because it illegitimately tried “to extrapolate to the supernatural” from the empirical data of science. Paley was wrong because “there is no basis in uniform experience for going from nature to the supernatural, for inferring an unobserved supernatural cause from an observed effect.” Similarly, another early draft (also from when the manuscript was still titled “Biology and Origins”) stated: "[T]here are two things about which we cannot learn through uniform sensory experience. One is the supernatural, and so to teach it in science classes would be out of place . . . [S]cience can identify an intellect, but is powerless to tell us if that intellect is within the universe or beyond it." By unequivocally affirming that the empirical evidence of science “cannot tell us if the intellect behind [the information in life] was natural or supernatural” it should be clear that the early drafts of Pandas meant something very different by “creation” than did the Supreme Court in Edwards. The decision to use the term “intelligent design” in the final draft to express the emerging theory of origins was not an attempt to evade a court decision, as Plaintiffs have alleged, but rather to furnish a more precise description of the emerging scientific theory.
IV. THE PRESENT THEORY OF INTELLIGENT DESIGN DOES NOT RELY UPON PANDAS AS AN AUTHORITATIVE GUIDE.
If this case were being argued in 1989, Pandas might be more dispositive as an authoritative guide to the theory of intelligent design. But there is now more than 15 years of scholarship by scientists and philosophers of science who think there are empirical means to detect design in nature. Pandas predates most of the major works of the contemporary design movement in science, including monographs by Cambridge University Press, and technical articles in peer-reviewed science and philosophy of science journals. The primary guide to the beliefs and views of intelligent design scholars today should be this record of scholarly and scientific and technical articles, not a supplementary high school textbook written more than a decade-and-a-half ago.
Note: This is the second part of a multi-part series. You can read the first installment here.
It's becoming glaringly apparent that Judge Jones was incredibly sloppy with the purported findings of "facts" in his lengthy 139-page judicial opinion. Time and again, Judge Jones makes assertions in his opinion that are unambiguously factually wrong--even though the correct information was a part of the official record before him. It is beginning to look like he didn't even bother to read or consider the information and arguments submitted by the side he disagreed with.
Here are some of the more egregious examples.
1. Judge Jones wrongly claims there are NO peer-reviewed scientific articles favoring ID.
Judge Jones writes that "a final indicator of how ID has failed is the complete absence of peer-reviewed publications supporting the theory." (p. 87, emphasis added) Again, he claims that "ID is not supported by any peer-reviewed research, data or publications." (p. 87, emphasis added) In a footnote, he glancingly mentions one peer-reviewed article in the journal Protein Science by Michael Behe, but complains that this article does not explicitly reference ID. (footnote 17, p. 88).
Judge Jones shows no awareness of several other peer-reviewed and peer-edited publications explicitly supporting both intelligent design and Behe's idea of irreducible complexity, even though a list of these publications was submitted as part of the record in the case. See appendix D of the amicus brief filed by the Foundation for Thought and Ethics (FTE) here. This appendix lists such articles as Stephen Meyer's peer-reviewed technical article on the Cambrian explosion and intelligent design in The Proceedings of the Biological Society of Washington, and a more recent technical article on irreducible complexity and intelligent design in the scientific publication Dynamical Genetics. Judge Jones did not deny that these articles were peer-reviewed. He simply ignored them. He also ignored the peer-reviewed academic books like William Dembski's The Design Inference (Cambridge University Press) and Campbell and Meyer's Darwinism, Design and Public Education (Michigan State University Press). A number of the peer-reviewed articles supportive of design were referenced by biologist Scott Minnich during his testimony at trial. Was Judge Jones asleep during that part of Dr. Minnich's testimony?
2. Judge Jones wrongly treats theologian/philosopher Thomas Aquinas as the ultimate source of the argument to design.
Drawing on theologian John Haught, Judge Jones treats Thomas Aquinas as the originator of the ID of intelligent design, writing that "ID is not a new scientific argument, but is rather an old religious argument for the existence of God. He [Haught] traced this argument back to at least Thomas Aquinas in the 13th century...." (p. 24) In fact, discussions about the design of nature date back to Plato and Aristotle and significantly predate medieval theology. Judge Jones would have known this fact had he read the Foundation for Thought and Ethics amicus brief, which pointed out (with documentation):
Ancient philosophers began formulating arguments about design long before they had exposure to the Bible, and indeed without basing their arguments on sacred scriptures of any kind.The Greek philosophers Heraclitus, Empedocles, Democritus, and Anaximander believed that life could originate without any intelligent guidance, while Socrates, Plato, and Aristotle advocated that mind was required.33 During the Roman era, Cicero cited the orderly operation of the stars as well as biological adaptations in animals as empirical evidence that nature was the product of “rational design.” [pp. 12-13]
Judge Jones either didn't read the brief, which is part of the official record of the case, or he again ignored the evidence simply because it didn't fit his predetermined conclusions.
3. Judge Jones wrongly claims that intelligent design "requires supernatural creation." (p. 30, emphasis added)
Contrary to Judge Jones, there was extensive evidence in the trial record and documents submitted in briefs that intelligent design does NOT "require supernatural creation." Indeed, Judge Jones seems to willfully misrepresent the claims of intelligent design scientists, who consistently have made clear from the very start that empirical evidence cannot tell one whether the intelligent causes detected through modern science are inside or outside of nature. For extensive documentation of this fact, see Appendix A to the Discovery Institute amicus brief submitted in the case, available here.
As a scientific theory, all ID claims is that there is empirical evidence that key features of the universe and living things are the products of an intelligent cause. Whether the intelligent cause involved is inside or outside of nature cannot be decided by empirical evidence alone. That larger question involves philosophy and metaphysics.
To justify his false claim that ID requires a supernatural cause, Judge Jones also completely misrepresents the content of the textbook Of Pandas and People. He claims at one point that "Pandas indicates that there are two kinds of causes, natural and intelligent, which demonstrate that intelligent causes are beyond nature." (p. 30) In fact, Pandas explicitly and repeatedly makes the opposite claim: Intelligent causes may be either inside or outside of nature, and empirical evidence alone can't determine which option is correct. Pandas made this distinction even in its early drafts, one of which emphatically stated that "in science, the proper contrary to natural cause is not supernatural cause, but intelligent cause." (FTE Amicus Brief, Appendix B, Document B; emphasis added.) Also consider the following passages from the edition of Pandas actually used in Dover (both of these passages were highlighted for Judge Jones in Appendix A of the FTE amicus brief):
“If science is based upon experience, then science tells us the message encoded in DNA must have originated from an intelligent cause. But what kind of intelligent agent was it? On its own, science cannot answer this question; it must leave it to religion and philosophy. But that should not prevent science from acknowledging evidences for an intelligent cause origin wherever they may exist.”(Of Pandas and People, 2nd ed., 1993, pg. 7; emphasis added)
“Today we recognize that appeals to intelligent design may be considered in science, as illustrated by current NASA search for extraterrestrial intelligence (SETI). Archaeology has pioneered the development of methods for distinguishing the effects of natural and intelligent causes. We should recognize, however, that if we go further, and conclude that the intelligence responsible for biological origins is outside the universe (supernatural) or within it, we do so without the help of science.” (Of Pandas and People, 2nd ed., 1993, pg. 126-127; emphasis added)
Again, the intelligent causes detected through empirical evidence may be either inside or outside of nature; and contrary to Judge Jones, this point is made in the very book he cites to justify his position. Incredibly, Judge Jones at another point in his opinion (p. 25) misinterprets the Pandas' quote on p. 7 as further proof that ID requires a belief in a supernatural cause, claiming:
In fact, an explicit concession that the intelligent designer works outside the laws of nature and science and a direct reference to religion is Pandas’ rhetorical statement, “what kind of intelligent agent was it [the designer]” and answer: “On its own science cannot answer this
question. It must leave it to religion and philosophy.”
Contrary to Judge Jones, the above statement clearly does NOT concede that "the intelligent designer works outside the laws of nature and science." Instead, it merely reaffirms that empirical science cannot determine whether the intelligent cause detected resides inside or outside of nature. That further determination requires more than empirical science. Far from being merely "rhetorical," this claim is central to the definition of intelligent design as a scientific theory, and it is reaffirmed and further explained in other passages in Pandas that the Judge ignores (such as the passage on pp. 126-127 cited above).
4. Judge Jones wrongly claims that intelligent design grew out of Christian fundamentalism.
According to Judge Jones, intelligent design is not just "religious," it is the outgrowth of twentieth-century American Christian "fundamentalism." He makes this claim notwithstanding the fact that the debate over design in nature reaches back to the ancient Greeks (as pointed out above), and that the debate remained an important dispute among scientists from Darwin onward. As explained in the FTE amicus brief:
Design was also an important part of the contemporary scientific debate at the time Darwin’s theory was developed. Indeed, the term “intelligent design” as an alternative to blind evolution was employed by Oxford scholar F.C.S. Schiller as early as 1897. Schiller wrote that “it will not be possible to rule out the supposition that the process of Evolution may be guided by an intelligent design.” Schiller, like modern design theorist Michael Behe, argued for intelligent design without rejecting all forms of evolution or even common descent.
It's important to stress that Judge Jones can't point to even a single doctrine unique to Christian fundamentalism that is incorporated by ID. Indeed, he effectively concedes that ID proponents distinguish their theory from fundamentalism by pointing out that it does NOT involve arguments based on "the Book of Genesis", "a young earth," or "a catastrophic Noaich flood." (p. 35) So where's the fundamentalism?
In wrongly trying to conflate ID with fundamentalism, Judge Jones simply ignored the testimony in his court of two of the most prominent ID scientists, biologists Michael Behe and Scott Minnich. Neither Minnich nor Behe were shown by the ACLU to be fundamentalists (they aren't), neither were shown to believe in a literal reading of Genesis (they don't), neither were shown to come to their beliefs in ID from fundamentalism (they didn't), and both reject neo-Darwinism on scientific grounds. Indeed, Behe has made clear that he had no problem with the modern theory of evolution until he discovered that what he was seeing in the lab did not fit with what he was being told in standard textbook accounts. Behe's skepticism of neo-Darwinism was not driven by a change in religion, but by scientific evidence. So again, where's the fundamentalism?
To conclude, Judge Jones' repeated mistatements of fact and his one-sided recitation of the "evidence" reveal not only a judicial activist, but an incredibly sloppy judge who selects the facts to fit the result he wants.
One of the things that has struck me this past week is just how bitter and angry many defenders of Darwin's theory have become. This should have been a joyous week for Darwinists. After all, a federal judge in Pennsylvania issued a ruling claiming that teaching intelligent design in science classes is unconstitutional. You would have thought this result would have put Darwinists in a festive mood. But instead, many of them seem (if possible) even more sour and surly than before. Consider some of the following extracts from various pieces of hate mail I've received from evolutionists this past week.
Someone named "Ken B" wrote:
It's obvious that you people are just dark ages throwbacks. You try (so desperately) to cloak your GARBAGE in pseudo-scientific jargon and obscurantism...It must suck to be considered a flat-earther in the 21st Century.
You can pack up your bags, pull down the sign and hitch a ride out of town now. Seattle is no place for backasswards hicks.
Then there was the following diatribe from someone who refused to sign his (or her) name:
Intellectually, Judge Jones dwarfs your ilk. Keep trying to validate your significance. Assuming you are literate, which is in great doubt due to your explicit inability to critically think, try reading: The English Dictionary. It defines words like activist, ignorant, bigot, and scientific. Resign, diseducator. The students of [the university where I teach] deserve better than an ignorant, manipulative, power-hungry politico.
Another evolutionist thanks God he never had me for a political science professor (I'm glad I've given him something to be thankful for this Christmas season):
You know, it's bad enough that we have the extreme, religious, "right-wing" in this country trying to shove religion down the throats of students attending public school; it's bad enough that we have "Trojan" organizations such as yours that mask your real motives and agendas; but now we have principals in your organizations, not only second-guessing court rulings, but also denigrating the judges who render those opinions. Shame on you and thank God I was not one of Mr. West's students when I got my degree in Political Science.
One of my e-mailers even lamented that Americans have "allowed" ID proponents to have free speech at all. Apparently such freedom of speech is making Europeans look down their noses at us:
You are all aware, I hope, that most Europeans think less of Americans for the freedom we've allowed to Creationists and ID proponents. They find such concepts as proof of a failed educational system mated with a mild form of insanity. They HOPE it is mild, as one of the faithful is CiC of the largest military force in the world right now.
And liberals find ministers like Jerry Falwell frightening? Last time I checked, Falwell never claimed that it was "insanity" for Americans to "allow" free speech for Democrats. Yet here a Darwinist is basically implying that America should abolish free speech for anyone who is skeptical of Darwinism--in order to impress Europeans!
On this Christmas Day, I hope some of these bitter and angry folk find the joy and peace they are so obviously missing. Here's a suggestion for them: Try watching "It's a Wonderful Life" or re-reading "A Christmas Carol."
For instance, the sidebar to Jill Lawrence’s “'ID' ruling traces idea's problems” stated, “Proponents of the idea usually say they don't know who or what that intelligent designer might be.” Such a characterization makes design theorists appear disingenious, suggesting as it does that we are trying to hide our religious convictions. But we have been quite clear about who we think the designer is.
For instance, Jay Richards, co-author of The Privileged Planet , has also written The Untamed God, a work of Christian theology delineating an orthodox view of the Biblical God's triune nature. And Michael Behe makes no secret of being a Roman Catholic. He also notes, quite logically, that scientific evidence doesn’t tell us the identity of the designer. The microscopic rotary engine called the bacterial flagellum possesses the clear hallmark of design, Behe argues, but there’s no signature on the bushing of the motor that reads, “Created by Jehovah.”
The sidebar misses this point, but the Judge’s error is greater. Setting himself up as an expert on science, Jones argues that the scientific arguments of design theorists must be ruled out of the Dover classroom because these scientists are also interested in the positive cultural effects of overthrowing Darwinism.
But such fallacious reasoning also disqualifies the scientific arguments of Darwin defenders like Daniel Dennett, Steven Weinberg, and Richard Dawkins, for all are passionately interested in the metaphysical implications that Darwinism has for their anti-religious agenda.
Radio talk show host Rush Limbaugh weighed in on the Dover intelligent design trial yesterday, rightly characterizing the opinion of Judge John E. Jones III as aggressive judicial overreach. But Limbaugh also suggested that design theorists appeared disingenious in drawing a sharp distinction between creationism and intelligent design. Since newspapers routinely mangle our position on this matter, it's little wonder.
Traditional creationism begins with the Bible and moves from there to science. Intelligent design begins and ends with science. It has larger metaphysical implications, but so does Darwinism. The theory of intelligent design is a methodology for detecting design, and scholars from a variety of backgrounds employ it--Christian, Jew, Hindu, even a former atheist like Antony Flew, who still rejects the God of the Bible.
When comparing and contrasting intelligent design and creationism, the problem for any commentator is which definition of creationism to use. Kenneth Miller, a staunch Darwinist who believes that the Biblical God designed the Big Bang and fine-tuned the physical constants of nature, admitted at the Dover trial that he is a creationist in a broad sense of the term.
The legally relevant definition of creationism comes from Edwards vs. Aguillard (1987), the Supreme Court decision that declared creationism unconstitutional for public school science. There the Court found that Louisiana’s creationism act entailed the teaching of religion by virtue of a specific religious construction, comprised of particular teachings clearly paralleling the ‘Book of Genesis. Thus, it was a specific set of teachings or doctrines from a religious source that constituted religion. Whatever you want to label intelligent design, it isn't what the Court described in Edwards vs. Aguillard, and the fact that the leading design theorists believe in the Biblical God is beside the point. There's nothing in the Constitution that says a scientist's arguments should be ignored simply because of his religious beliefs.
Early design theorists like Charles Thaxton say that, as scientists, they were trying to develop a purely scientific methodology that came to grips with the evidence for design in nature. Others insist that these early design theorists boiled from their methodology any evidence based on Biblical authority simply to pass constitutional muster. The remarkable thing is this: from a legal standpoint, it shouldn't make any difference which scenario you accept.
Imagine, for the sake of argument, that the early design theorists entered a smoke-filled room, locked the door, rolled up their sleeves and said:
Let's develop a methodology that will pass muster with Edwards vs. Aguillard, a methodology that sticks strictly with scientific evidence, makes no appeals to Biblical authority, and doesn't try to defend a literal reading of Genesis but, instead, is general enough that Christians, Jews, Muslims, Hindus, and even non-religious philosophers like Antony Flew could all employ our methodology. Oh wait. We've already done that in The Mystery of Life's Origin (1984), which got positive responses from mainstream scientists and big wig philosophers like Darwinist and atheist Antony Flew. What else do we need to do? To distinguish it from the old creationist methodology, which moves back and forth between scientific evidence and Scripture, we'll give it a snappy name--intelligent design.
This, of course, is a fictional caricature right out of the Barbara Forrest playbook, but even if one swallows it whole, who cares, as long as the guys in the smoke-filled room really did remove the appeals to Biblical authority from their scientific writings?
As University of Chicago Law Professor Albert Alschuler comments concerning the Dover school board: "It seems odd to characterize the desire to go far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens."
To get around the substantive differences between intelligent design and biblical creationism, Judge Jones had to fixate on motive (both real and imagined); he had to assume that if he can identify one motive, he has magically ruled out the possibility of another motive playing a crucial role (in this case, the desire of ID scientists to follow the evidence wherever leads, even if it means upsetting a few Darwinists); and he had to mischaracterize ID as a religion-based theory when instead it's a theory based on scientific evidence that, like Darwinism, has larger metaphysical implications.
It's getting difficult to parody Darwinists, because their real statements are already so over-the-top. Take P.Z. Myers, the militant Darwinist biologist at the University of Minnesota, Morris. A few days ago, Prof. Myers suggested that he regards the Biblical patriarch Abraham--revered by Jews, Christians, and Muslims--as worse than Hitler:
I think that if I had a time machine, I wouldn't do anything as trivial as using it to take out Hitler before he caused all that trouble. I'd go all the way and pick up Abraham. I wouldn't kill him, oh no-since I've got a time machine, I'd just drop him off in the Permian while I was on my grand temporal tour.
That's right: According to Myers, taking out Hitler would be "trivial." What would really save humanity is getting rid of Abraham. It's hard to caricature the comments coming from Myers, because most of his comments already are a caricature.
A recent column in USA Today by Cal Thomas and Robert Beckel argued for a debate on intelligent design. Patricia Princehouse, a philosopher at Case Western in Cleveland wrote in to say that she and other Darwinists of her acquaintance would welcome a debate and announced it as January 3 in Cleveland. “Put up or shut up,”
was the genteel way she issued the invitation.
January 3 was then only a month away, with the holidays coming meanwhile. Further, it was unfortunately clear that Dr. Princehouse planned to establish the debate format and other conditions herself. Bill Dembksi expressed a willingness to debate, but wanted to discuss terms. But the Princehouse terms kept changing through yesterday (11 days before the proposed debate date), when Dembski advised Princehouse that any and all plans henceforth would have to be arranged mutually between Princehouse/Case Western and Bruce Chapman at Discovery Institute. (He has planned some debates in his time.) Dr. Princehouse wrote back, not to Chapman, but to Dembski to say that she suddenly is ready to adopt his plan in total. That left the matter in complete confusion.
What is going on here?
Discovery and its fellows are delighted to debate Dr. Princehouse and/or Kenneth Miller or whomever and want only to do so in a neutral forum with reasonable and MUTUAL agreements on topic, location, timing, and the other modalities associated with civilized debate. One side does not simply announce a place, and a time a few weeks’ hence, and demand that the opponent show up. Otherwise it looks like a publicity stunt.
But, we do gladly accept a debate in principle for later in the winter or early spring. We are coming up with ideas and venues and hope to see soon if Dr. Princehouse is still interested.
Meantime, don’t tell anybody, but it’s Christmas. We are filled with good cheer and good will for all. Yes, including the Darwinists at Case Western.
Over the next week or so, I plan to file several posts analyzing issues relating to Judge Jones' decision in the Dover case. I start today by revisiting the question of whether Judge Jones is an "activist" judge. Some Darwinists are livid that I've applied this label to the Judge. Although I've explained my reasons for regarding Jones as an activist in detail to many reporters, my full views haven't really been reported. So I thought I would explain them here.
I regard Judge Jones as an activist in this case not because I disagree with the outcome of his decision (although I do), but because I disagree with the injudicious and overreaching manner in which he framed his decision.
It is a standard principle in good constitutional jurisprudence that a judge should only go as far as necessary to answer the issue before him. So if a judge can decide a case on narrow grounds, that's what he ought to do. He shouldn't try to to use his opinion to answer all possible questions. In the present case, Judge Jones found that the Dover board did not act for a legitimate secular purpose. Instead, he determined that board members acted for clearly religious reasons. Having made this determination, the specific policy adopted by the Dover board was plainly unconstitutional under existing Supreme Court precedents. End of story. There was no need for the Judge to launch an expansive discussion of whether intelligent design is science, whether there is scientific evidence for the concept, whether it is inherently religious, whether Darwinism has flaws, or whether Darwinian evolution is compatible with faith. A judge who actually adheres to the idea of judicial restraint would not have ventured into these other areas, because they were completely unnecessary for the disposition of the case.
Why, then, did Judge Jones venture so far afield from what was necessary to determine the case? From the comments he made to the newsmedia, it seems that he wanted his place in judicial history. He relished the idea that he could be the first judge to give a definitive pronouncement on ID, and he didn't want to let go of that oppportunity just because good judicial craftsmanship wouldn't allow it. Judge Jones also had no small estimate of his own importance in the scheme of things. Take the following remarkable passage from his opinion:
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 of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. [p. 63] (emphasis added)
This passage exhibits the height of presumption, and it's why in my initial statement after the trial I referred to Judge Jones as having "delusions of grandeur." First, and contrary to the Judge's claim, a determination of whether ID is science was plainly NOT essential to the disposition of the case, as pointed out above. Even more troubling, however, is the Judge's suggestion that he wanted to determine whether ID is science so that no other judge need investigate the facts for himself. Judge Jones is a federal district court judge in one particular district court in Pennsylvania. But he's speaking as if he is more powerful than a majority on the United States Supreme Court! He is staking out the claim to have the right and duty to decide the question of whether inteligent design is science for all other judges in the entire United States in the future. Lower federal court judges are bound by Supreme Court precedents, but they certainly aren't bound by the rulings of other lower court judges at the same level. Although other federal judges certainly can refer to Judge Jones' decision (especially to his legal reasoning), every judge has a duty to reach an impartial and independent determination of the facts and law in the cases before him. Another federal district court judge can't simply say, "Well, Judge Jones has already decided the matter, so there is no need for me to do anything in this case before me." Nor can the judge tell the parties to a new case: "I've decided not to allow you to present any evidence, because Judge Jones already heard the evidence three years ago." Judge Jones, no matter what he thinks, is not the entire federal judiciary. Nor does he have the right to speak for the entire federal judiciary.
Another thing: Judges who truly believe in judicial restraint are careful not to try to use judicial power to decide divisive cultural controversies unless it is legally necessary to do so. In this case, as pointed out previously, Judge Jones had narrow grounds on which to base his decision. But he chose not to do so because he wanted to issue a definitive ruling on the disputed questions of whether intelligent design is science and whether it could ever be taught constitutionally in science classes. He wanted to decide the larger public controversy for all future legislators, school boards, and judges. That is judicial activism with a vengeance. It's the same type of activism that led the federal courts to try to decide the issue of slavery before the Civil War by judicial fiat in the case of Dred Scott. And it's the same type of judicial activism that led the federal courts to inject themselves into a host of social conflicts (such as abortion) during the past few decades. Far from resolving controversial issues, such activism betrays the democratic process and often leads to further polarization. By giving everyone a stake in the discussion, the democratic process tends to promote incremental solutions and compromise, which cools tensions over the long term. That's why judges who believe in judicial restraint are careful not to intervene on one side of a controversial debate unless absolutely necessary. It is the hallmark of activism for a judge to try to impose his view on a controversy when such a course of action is not absolutely necessary as a matter of law.
The main responses I've heard to the charge that Judge Jones is an activist are these: (1) he insists he's not an activist; and (2) he's a lifelong Republican.
Well, of course Judge Jones says he's not an activist. But methinks he protests too much. In his decision he goes out of his way to announce that his opinion will surely be attacked as an activist one. Far from indicating that he isn't an activist, I think that this self-serving disclaimer indicated that he plainly knew he was being an activist and wanted to cover himself.
Regarding the fact that he is a Republican appointed by a Republican President: So what? The most liberal activist member of the current United States Supreme Court (John Paul Stevens) was appointed not by Bill Clinton but by Republican President Gerald Ford. President Ronald Reagan, meanwhile, appointed a number of judges (at all levels) who turned out to be just as liberal as any Democratic appointees. Only someone with scant knowledge of judicial appointments over the past few decades would claim that the fact that a Republican president appointed a judge would mean that the judge could not be a judicial liberal or an activist.
Of course, the newsmedia are now fast spinning the tale that Judge Jones is not only a Republican, but he's supposed to be a conservative and devoutly religious Republican. As I will blog about soon, those claims seem to be about as mythical as the view that Judge Jones isn't an activist.
Intelligent Design critic Larry Arnhart has a thoughtful essay in Inside Higher Education encouraging students to learn about the controversy over Darwin by reading Darwin. Arnhart writes:
Why not introduce our students to this debate by having them read Darwin’s own writings in their biology classes? We could teach the controversy by teaching Darwin.
Arnhart seems to think that his idea won't be acceptable to either proponents or critics of intelligent design. Yet his proposal is something a number of ID proponents have advocated for some time.
I agree with Arnhart that reading Darwin is a fine way for students to engage the issues surrounding evolution. In fact, in my Social Darwinism course we spend the first several weeks reading Darwin's Descent of Man along with some modern proponents of neo-Darwinism. Reading Darwin is also something long advocated by John Angus Campbell, co-editor of Darwinism, Design, and Public Education (Michigan State University Press).
Arnhart's proposal deserves serious reflection and discussion. Of course, there are some issues that need to be worked out. It's true that reading Darwin's writings such as The Origin of Species and The Descent of Man provides a great introduction to many issues surrounding the theory of evolution. But Darwin represents only one side of the debate. If one is serious about "teaching the controversy" one needs to let Darwin's critics speak in their own voices as well, and that means that readings from Darwin need to be paired with readings by his most thoughtful critics. Arnhart writes that he has done that in his own university courses. Well and good. But readings from Darwin's critics need to be a part of any serious proposal to "teach the controversy."
There is one part of Arnhart's essay that requires a clarification, because it doesn't get Discovery Institute's science education policy exactly right. Arnhart writes:
Proponents of intelligent design at the Discovery Institute...have adopted the rhetorical argument of “teaching the controversy.” They recommend teaching the theory of evolution by natural selection along with intelligent design theory, so that students are fully informed about all sides of this debate.
In fact, Discovery Institute recommends teaching evolution by natural selection but also scientific criticisms of the theory. It does not recommend that schools require intelligent design. This is the policy we have supported in Ohio, Minnesota, Wisconsin, Texas, Pennsylvania, Kansas, and a number of other states. We do support the right of teachers to voluntarily discuss intelligent design, but we do not advocate this as a school board policy or state legislative policy. That is one reason we opposed the Dover School District policy from the start--well before there was any lawsuit. For a statement of our rationale on this point, see the letter we sent to the Pennsyvlania legislature opposing a bill on teaching intelligent design earlier this year.
Note: From now on, we will try to properly credit the University of Minnesota, Morris as the employer of Darwinist biologist P.Z. Myers. In a press release earlier this month, we mistakenly stated that P.Z. Myers was a biology professor at the University of Minnesota. We soon received an e-mail from a public relations person at the University of Minnesota, Morris. She wanted to make clear that Dr. Myers was actually employed by the University of Minnesota, Morris.
The press release in question highlighted Myers' bigotry and intolerance, pointing out that he advocated "the public firing and humiliation of some teachers" because they are critical of Darwin, and quoting his complaint that Darwinists "aren't martial enough, or vigorous enough, or loud enough, or angry enough."
Apparently administrators at the University of Minnesota, Morris are proud of P. Z. Myers, and want to make sure that when we highlight his bigoted and intolerant comments that their institution gets appropriate credit for making such comments possible. OK, we'll try to comply. After all... we want to give full credit where credit is due.
“Judge Jones’ decision about teaching intelligent design is legally irrelevant for Ohio’s Critical Analysis of Evolution model science curriculum,” says legal scholar and Gonzaga University law professor David DeWolf, in response to calls from critics that the lesson plan should be repealed by the state board of education.
“The U.S. Supreme Court laid down the foundation for this body of law nearly 20 years ago when they wrote that “scientific critiques” of “prevailing scientific theories” may be taught in public schools,” said DeWolf, also a senior fellow of the Discovery Institute’s Center for Science & Culture. “Not only is Ohio outside of Judge Jones’ legal jurisdiction, but the Ohio State science education standards explicitly acknowledge that they do not require the teaching of intelligent design, so his determination that intelligent design is not science doesn't affect the actions of the Ohio Board of Education.”
Ohio’s “Critical Analysis of Evolution” model lesson plan was created to implement a benchmark in the Ohio state science standards which requires students to be able to "describe how scientists continue to investigate and critically analyze aspects of evolutionary theory." The standards also clearly state that they do not endorse teaching intelligent design.
The Ohio lesson plan does not discuss religion or alternative scientific theories such as intelligent design. Created with input from a science advisory committee that included teachers, science educators, and scientists from across Ohio, the lesson plan was defended by a number of scientists in public testimony before the state board of education adopted it in 2004.
Some Ohio critics of intelligent design are now talking about limiting the state’s teaching of scientific evidence which challenges Darwinian evolution.
“Unlike the ACLU, we want students to learn more about evolution, not less,” said Dr. John West, associate director of Discovery Institute’s Center for Science & Culture. “Students need to learn Darwinian evolution because it is the dominant theory of biological evolution. But, they also need to learn about some of the scientific evidence that challenges parts of the theory.”
“Judge Jones thought he could write the definitive opinion that would spare the rest of the country the need to think further about these issues ,” added DeWolf. “ But our governmental structure provides for a multiplicity of voices, including the United States Congress, state boards of education, and legislatures, whose views are quite different from Judge Jones' about the value of teaching the controversy. To borrow from Mark Twain, the reports of the death of the controversy have been greatly exaggerated."
University of Chicago law professor Albert Alschuler has written an excellent piece about the Dover intelligent design trial. He writes:
The court offers convincing evidence that some members of the Dover school board would have been delighted to promote their old time religion in the classroom. These board members apparently accepted intelligent design as a compromise, the nearest they could come to their objective within the law. Does that make any mention of intelligent design unconstitutional? It seems odd to characterize the desire to go as far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens.
The rest is here.
December 21, 2005
The opinion of the federal court judge in Kitzmiller v. Dover Area School Board mischaracterized my role and actions on behalf of Discovery Institute in matters at issue in the case, making it necessary for me to set the record straight.
To be clear, prior to the filing of the lawsuit I never advised the members of the Dover Board in a privileged, attorney-client capacity. Further, I never advised members of the Dover Board to mandate the teaching of the theory of intelligent design or to adopt the ID policy at issue in the case. Rather, I strongly urged members of the Dover Board to either drop entirely the issue of alternatives to the teaching of evolution, or to only present scientific arguments both supporting and challenging the contemporary version of Darwin's theory and the chemical evolutionary theories for the origin of the first life. The Dover Board had their own legal counsel in their Solicitor and the public-interest law firm that they later hired. Members of the Dover Board who adopted the ID policy acted completely contrary to my strongest suggestions.
Page 100 of the PDF of Judge John Jones III's opinion for the U.S. District Court for the Middle District of Pennsylvania refers to me by name. This page, along with a few other references throughout the opinion, gives the impression that I advised and supported Dover Board Member William Buckingham and/or other Board Members in pursuing the course of action that the Dover Board took and in promulgating the ID policy that the Dover Board later adopted. But that impression is a totally false one. Unfortunately, I was neither deposed for the case nor called as a witness to testify. I was never even invited to participate in discovery or the trial to relate events as they actually happened. It is disappointing to see my actions and suggestions so mischaracterized through a judicial opinion when I was not in any way involved in the discovery or trial process. The only source in the record upon which the Judge could base his misportrayal of my actions and stated position to Board Members was the deposition and trial testimony of Dover Board Members, much of which the Judge himself has found to be contradictory or discreditable.
Taking things from the top, between August of 2003 and August of 2005 I served Discovery Institute's Center for Science & Culture as a legal and public policy analyst. In keeping with Discovery Institute's long-held public policy position, I frequently reiterated to legislators, school board members, teachers, parents and students across the country that the legally and pedagogically appropriate way to treat the topic of evolution in public schools is to fully teach the scientific arguments for and against the contemporary version of Darwin's theory as well chemical evolutionary scenarios for the origin of the first life. Although I served at an institution supporting scientific research into the new theory of intelligent design and consider myself a proponent of the same, in all my time at Discovery Institute I consistently held to our public policy position that public schools should not mandate the teaching of the theory of intelligent design.
In the spring of 2004, through an e-mailed newspaper article, I became aware of the controversy in Dover Township, PA, concerning the teaching of evolution. Proceeding to call Dover Board Member William Buckingham, I told him that his Board would run afoul of the First Amendment of the Constitution should it choose to require students to learn about creationism or to censor the teaching of the contemporary version of Darwin's theory or chemical origin of life scenarios. I also made clear to Buckingham that Discovery Institute does not support the mandating of the theory of intelligent design. Although our phone conversations touched upon matters of legality, they also concerned matters of education policy and curriculum that I did not consider privileged. I clearly and unequivocally identified myself as a legal and policy analyst for the Discovery Institute.
In the hopes of persuading Buckingham away from leading the Dover Board on any unconstitutional and unwise course of action concerning the teaching of evolution, I sent Buckingham a DVD titled Icons of Evolution, along with a companion study guide. Those materials do not include arguments for the theory of intelligent design, but instead contain critiques of textbook treatments of the contemporary version of Darwin's theory and the chemical origin of the first life. The content of the materials is in keeping with the U.S. Supreme Court's pronouncement in Edwards v. Aguillard (1987) that public school students may be taught prevailing scientific theories along with "scientific critiques of prevailing scientific theories." Even so, I never advocated that the material in Icons be given a preferred position in the curriculum or that it even be given "equal time."
It was simply my intent to provide Buckingham and his colleagues with a concrete option for teaching evolution in a full and fair manner--so as to involve the scientific arguments for the contemporary version of Darwin's theory and the chemical origin of life--along with some of the scientific criticisms that have been raised against those theories. I sought to provide him and the Board with a way of handling the topic of evolution without mandating the teaching of the theory of intelligent design or reading aloud any disclaimer mentioning it. Buckingham received the materials and later told me that the materials I sent him were the solution for their situation. Our correspondence thus ended, as I was led to believe that the Dover Board would not be requiring instruction in creationism or in the theory of intelligent design.
However, several weeks later I learned through news accounts that the Dover Board had obtained several copies of the intelligent design textbook Of Pandas & People (2d ed.) and planned on including them as part of the District's mandated curriculum. Subsequently, the Dover Board adopted the ID policy that was the subject of the ACLU's lawsuit. All through this time I reiterated to the Dover Board Members I came into contact with that the ID policy should be drastically revised, if not rescinded altogether. My comments in an Oct. 6 press release reiterate Discovery Institute’s policy position favoring the responsible teaching of scientific strengths and weaknesses of the contemporary version of Darwin’s theory and of chemical origin of life scenarios, but not the mandating of the theory of intelligent design. An August 25, 2005 USA Today article by Jill Lawrence provides a largely correct account of one instance in which I attempted to dissuade the Dover Board from the course it had taken:
"Attorney Seth Cooper advised the Dover school board not to adopt its policy and even offered guidelines for change. ‘We do believe a lawsuit is certain in your situation,’ Cooper told Alan Bonsell, the school board curriculum chairman, in a Dec. 10, 2004, e-mail. ‘We strongly recommend some corrective action be taken.’"
That e-mail did not constitute attorney advice, but it did convey my urgent recommendations for policy withdrawal or revision. The lawsuit was filed by the ACLU on Dec. 14, 2004--the very same day Discovery Institute issued a press release calling for the withdrawal of the Dover Board’s ID policy.
Additional passages of Judge Jones' opinion bolster a misguided interpretation of my role in this matter on behalf of Discovery Institute. Page 122 of Judge Jones' opinion states that Discovery Institute was one of only two outside organizations that the Board consulted prior to its October 18, 2004 curriculum change vote, and that the purpose of such contacts was to obtain only legal advice. Also, on page 134, Judge Jones writes that the Dover Board "relied" upon legal advice by the Discovery Institute and another organization.
I take strong exception to the Judge's characterization of Discovery Institute--a secular public-policy think-tank and emphatically not a party to the lawsuit--as a culturally religious organization. Also, these references by the Judge leave open the impression that Discovery Institute somehow advised the Dover Board to adopt its ID policy. But that is completely false. The strong suggestions I gave to Buckingham prior to that vote touched upon legal matters, but my recommendations were disharmonious and completely at odds with the ID policy that the Board eventually adopted. Neither I nor anyone at Discovery Institute had any knowledge or role whatsoever in the drafting of the ID policy that the Dover Board adopted.
It should also be noted that, contrary to deposition testimony provided by Dover Board Members, neither myself nor Discovery Institute attorney Mark Ryland ever offered to represent the Dover Board. Subsequent to the ACLU's filing the lawsuit and Discovery Institute's own press release urging the ID policy's withdrawal, I met with three members of the Dover Board. I implored the Board Members in direct terms to withdraw or significantly alter their ID policy. A number of days thereafter, attorney Mark Ryland and I again met with those same three Board Members, urging them to withdraw the policy or to substantially revise it and hire as counsel local Pennsylvania attorneys that we had recommended to them. Consistent with the Dover Board's previous actions at every stage of its local evolution controversy, the Dover Board chose to completely disregard our legal and policy recommendations. As noted above, the Dover Board had its own legal counsel and ultimately chose its own course of action.
Seth L. Cooper
Former Discovery Institute Attorney
{PDF}
CSC Senior Fellow David K. DeWolf has provided us this first, short analysis of yesterday's decision in the Dover School Board case. DeWolf is a professor of law at Gonzaga University and the author of a briefing book for public school administrators, Teaching the Controversy: Darwinism, Design and the Public School Curriculum.
In his opinion in the Kitzmiller case, Judge Jones accepted virtually every argument made by the ACLU.
To be fair, the ACLU did present testimony supporting the plaintiffs' claim that the school board had acted for religious motives in adopting the policy requiring that a four-paragraph statement be read.
If Jones had stopped there, few would have quarreled with his decision. However, he went on to address the question of whether intelligent design is science. He did so based on his belief 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 of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us."
Relying almost exclusively on the evidence presented by the ACLU's witnesses, Jones held that ID is not science. He claimed that the witnesses established that ID relies on "supernatural" explanations, that it was untestable, and that it had produced no peer-reviewed literature. Each of these claims was carefully rebutted by the briefs submitted by amici, including the Discovery Institute and a large group of scientists who urged the court not to try to settle the question of the definition of science and the scientific status of intelligent design.
Judge Jones also reviewed the conflicting views of irreducible complexity presented by Michael Behe and Ken Miller. Whereas the Cambridge University Press thought the issue sufficiently provocative that it recently published a volume entitled "Debating Design," in which both scientists presented their views, Judge Jones took it upon himself to declare a winner in the debate.
Perhaps most startling and ironic about the case was Judge Jones' adoption of the testimony of John Haught, a theologian who testified for the ACLU. Haught gave his opinion that ID is religion, not science, but he quickly assured the court that there is no incompatibility between evolution and religion. Judge Jones picked up on this assurance and at the end of his opinion stated: "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."
This is like a judge assuring us that it is "utterly false" that Judaism is inconsistent with eating pork. "After all," a judge might say, "A distinguished rabbi testified that true Judaism no longer emphasizes dietary laws, but focuses on the ethical duties we owe to one another." Alarm bells should go off when a judge believes that he can resolve hotly contested issues about what someone's religion does or does not permit. But then again, after having taken upon himself the task of deciding what constitutes good science, Judge Jones' willingness to decide theological questions should come as no surprise.
Nonetheless, Judge Jones' pronouncements are not likely to be reviewed by an appellate court, because the newly elected Dover school board campaigned on their opposition to the contested policy, and an appeal is unlikely. But by everyone's reckoning the debate is far from over. Recently a federal judge's rejection of a textbook in Cobb County, Georgia was sharply questioned by a federal appeals court panel when the case was argued, and a federal judge in California denied a motion to dismiss a lawsuit challenging a pro-Darwin website.
Across the country, legislatures and state boards of education are taking up the question of whether and how to "teach the controversy," and they not likely to find Judge Jones' analysis persuasive. As policies emerge that are more in keeping with the American spirit of open inquiry, the Kitzmiller case will recede as an interesting and ironic footnote to the history of this scientific and cultural debate.
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