First Things on Dover Decision
In the April, 2006 issue of First Things, Villanova Law professor Robert T. Miller offers an opinion on "Darwin in Dover, PA." (available online next month) that brings up several points worth highlighting.
Regarding Kitzmiller, Miller only half agrees with Judge Jones, agreeing that ID is not science as he defines it (which I will comment on more later), but disagreeing that ID is religion. To make his case, Miller's opinion offers two different "senses" of science, one of which ID satisfies, the other of which he claims ID does not satisfy. Overall, the article focuses on the philosophy and nature of science, and devotes only a scant few paragraphs to the legal issues presented in Kitzmiller.
The Legal Analysis: Only Half Right
Regarding the law, Robert T. Miller argues not only that Judge Jones was bound by Supreme Court Establishment Clause precedent, but also that Jones's conclusion that ID is religion and not science is only half-right. Though Miller agrees with the Judge that ID is not science, he does not agree that ID is religion. "Design is not science, at least not in the usual sense, but neither is it religion." Miller goes on to point out that religion involves revealed doctrine and matters of faith. "That's not what Intelligent Design is at all, and to the extent that he held otherwise in Kitzmiller, Judge Jones is mistaken."
This places Miller's apparent approval of the Kitzmiller decision on peculiar grounds. Though he disagrees with Judge Jones on whether ID is religion, he seems to favor the result of the decision--that ID should be expunged from science classrooms:
"So, if Intelligent Design is not science but still not religion, is Kitzmiller rightly decided? I think so. Like Cardinal Schönborn, I think it is unhelpful to get philosophy mixed up with science. . . . We ought not inject a philosophical argument into a science class; this is bad epistemology, and it is likely to create confusion."
"Regardless of how we ought to understand the Establishment Clause, Intelligent Design does not belong in high-school biology classrooms."
Instead of having parts of intelligent design taught in science class, Miller favors introducing a full class in philosophy which would include intelligent design, Aristotle, Aquinas's Five Ways, arguments for the existence of God, Hume and even Kant. Miller believes such a philosophy class would alleviate the "atheistic drift" that he believes motivated the school board in Dover.
As one who majored in philosophy in college, I am amenable to proposals for teaching more philosophy in high school. However, Miller's proposal, and his praise for Jones's Kitzmiller decision as "rightly decided," leave me perplexed. Miller agrees with a policy of not teaching ID in science classes (and adding a philosophy class instead), and yet he rejects Judge Jones's conclusion that ID is religion. Given these two points, I cannot understand how Miller supports Kitzmiller, which decided as a matter of constitutional law that ID should not be taught in science classrooms.
If ID is not religion, then for Establishment Clause purposes, federal courts would have no legal basis for re-writing a school board's science curriculum by tearing ID out of the science classroom. If it is really true that "[s]tates and local school boards are generally afforded considerable discretion in operating public schools" (Edwards v. Aguillard, 482 U.S. 578, 583 (1987).) then courts should remember that "the wisdom of an educational policy or its efficiency from an educational point of view is not germane to the constitutional issue of whether that policy violates the Establishment Clause." (Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684, 694 (11th Cir. 1987).) Given the many secular purposes for teaching ID in a science classroom, it seems that a school board should not be censured for teaching it in a science classroom, especially given that Miller believes ID is not religion. Given this point, I cannot see how Miller believes Kitzmiller was "rightly decided."
Quinean Science and Strict Science?
The heart of Miller's article is his proposal that we understand science in two different senses. He also notes that ID, as he understands it, has two parts, a negative challenge to neo-Darwinism and a related positive case that intelligent design best explains the data.
Drawing from W.V. Quine's seminal Two Dogma's of Empiricism, Miller notes that for one sense of science "we posit things unseen in order to explain and predict what we observe." This "Quinean sense" of science offers an explanation for observable phenomena. Miller believes that intelligent design easily fits under this sense of science.
However, he goes on to offer a much stricter definition of science:
"There is a more robust sense of science in which we require not only that a theory explain and predict phenomena but also that it appeal to lawlike generalizations--to statements that purport to be not only true but necessarily true."
For this lawlike sense of science, Miller believes that science must only work with explanations that are necessarily true, or "true in every case there ever could be." He further explains that the lawlikeness of scientific laws make them predictive, and allow them to be falsified by appropriate experiments. This more strict sense of science is what Miller believes scientists usually have in mind.
From this, Miller argues that the positive argument of intelligent design can never count as science, because "a designer would operate not by lawlike necessity but by intelligence and free choice." The intelligence of a designer, according to Miller, disqualifies the explanation from strict science. Intelligent agents "are not scientific in the sense that physics and chemistry and biology are scientific." However, there are many aspects of intelligent design which are empirical and testable (see here), which cut against Miller's argument.
I have two major problems with Miller's argument that intelligent design cannot be science, as he strictly defines it. First, Miller has reintroduced the demarcation problem that philosophers of science have long critiqued. Alvin Plantinga recently noted the problem of relying on falsification for demarcating science (here). Second, Miller fails to apply his "robust," strict limitation on science to the theory of neo-Darwinism. There is a peculiar double-standard employed where the positive explanation of intelligent design is not science, as chemistry is science, yet Miller does not explain how neo-Darwinism is itself falsifiable science, like chemistry.
For example, applying Miller's "strict sense" of science to his own discussion of neo-Darwinism produces a peculiar result. Miller invokes exadapation as the evolutionists answer to Behe's irreducible complexity. Of all the things that can be said about the evolutionary 'mechanism' of exadapation, surely "necessarily true" by a lawlike rule is not one of them. I believe that his own account of neo-Darwinism falls outside his narrow view of science. This is not an isolated case of neo-Darwinian explanation falling short of logical necessity (see here and here for more examples).
Furthermore, Miller's stricter understanding of science would rule out much of what is currently discussed in high-school sciences classes. While lawlike rules of nature are indeed part of science, there is much that does not derive from axiomatic laws of nature. Evolutionary "explanations" for how things evolved are not even lawlike, let alone necessarily true. How did the wing evolve? How did the supposed "RNA world" turn into the current DNA / protein-based cell? These "explanations" are necessarily un-lawlike, based upon historical contingencies, and are typically rife with speculation. For Miller's case against teaching ID in science to stand, one must justify his very narrow definition of science (which bears many similarities to methodological naturalism), and one must explain how the neo-Darwinian explanation for an organism meets this definition in a more substantial way than the intelligent design explanation.