November 30, 2007
From Scopes to Dover-27: The Dover verdict
(For previous posts in this series, see here.)
The judge who presided in the trial Kitzmiller v. Dover seemed to have a more sophisticated idea of the nature of science than Judge Overton in the 1982 case of McLean v. Arkansas. Judge Jones's full analysis of how he came to his conclusion that intelligent design was religion and not science (p. 64-89) is well worth reading because it gives an excellent summary of some basic ideas in the history, philosophy, and methodology of science.
Judge Jones based his ruling on arguments similar to those used by Judge Overton in McLean v. Arkansas, in which the latter ruled that creation science was also a religious belief and not science. This aspect of the opinion may end up being the most significant part of the verdict, with devastating consequences for the Discovery Institute's long-term goal of slowly bringing religion and god back into the schools. The reason that IDC strategists wanted to have their theory considered a science was that then that it would have a better chance of passing the Lemon test for satisfying the establishment clause.
Judge Jones said in his ruling:
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 and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and 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)
Judge Jones further added: "It is notable that not one defense expert was able to explain how the supernatural action suggested by ID could be anything other than an inherently religious proposition." (p. 31) He also pointed to the expert evidence given by the pro-IDC witnesses themselves (Michael Behe, Scott Minnich, Steven Fuller, and statements made elsewhere by other leading IDC figures Philip Johnson and William Dembski) and to the Edwards v. Aguillard and the McLean v. Arkansas precedents to conclude that "ID’s religious nature is evident because it involves a supernatural designer." (p. 29)
Judge Jones said in his ruling (p. 46) that all the Supreme Court precedents imply that "[T]he Establishment Clause forbids not just the explicit teaching of religion, but any governmental action that endorses or has the primary purpose or effect of advancing religion."
We saw that the history of the actions of the Dover school board had made it fairly easy to determine that the board had violated the purpose prong of the Lemon test. To determine whether it had also violated the effect prong and the endorsement test, Judge Jones' said in his ruling that what determines whether a law passes constitutional muster on these grounds is not only how one parses the actual wording of the legislation but also whether a reasonable and informed observer would interpret the effect of the law as an 'endorsement' of a particular religious viewpoint.
(This 'endorsement test' standard was articulated by Justice Sandra Day O'Connor in her concurring ruling in the1984 case of Lynch v. Donnelly where she said that the key issue was whether a government policy would be seen as an 'endorsement or disapproval of religion'. The use of an 'informed, reasonable observer' as the standard for making such a determination was articulated by her in the 2004 case of Elk Grove Unified School District. v. Newdow 542 U.S. 1.)
Jones said that in general:
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, my italics)
In the specific cases of challenges to evolutionary theory, he looked at history and legal precedent and especially at:
a factor that weighed heavily in the Supreme Court's decision to strike down the balanced-treatment law in Edwards, specifically that "[o]ut of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects." (p. 48)
He went on:
In singling out the one scientific theory that has historically been opposed by certain religious sects, the Board sent the message that it "believes there is some problem peculiar to evolution," and "[i]n light of the historical opposition to evolution by Christian fundamentalists and creationists[,] . . . the informed, reasonable observer would infer the School Board's problem with evolution to be that evolution does not acknowledge a creator." (p. 57, my italics)
Notice that the standard used for judging the purpose of the law is what an 'informed, reasonable observer' would infer from the action. IDC advocates and supporters tried to implement their strategy by carefully choosing words and sentences free of any obviously religious connotations so that they would meet the letter of the law and thus hope that the policy will pass constitutional scrutiny. But what Judge Jones said is that it is not merely how the law is worded but also how a particular kind of observer, who is assumed to be much more knowledgeable about the issues than your average person in the street, would interpret the intent of the law.
This is a very damaging part of the verdict to the IDC case. IDC strategy has always been to undermine the credibility of evolutionary theory in science by singling it out for special scrutiny. They have never called for 'teaching the controversy' in all the other areas of science. Judge Jones said that since an 'informed, reasonable observer' would know that Christians have had long-standing objections to evolutionary theory on religious grounds, singling it out for special treatment would be seen by such an observer as tantamount to endorsing a religious viewpoint. (I have noticed this personally. I sometimes come across people who say they are skeptical about the theory of evolution and then quickly add that their opposition is not due to religious reasons, because they know that religion is why evolution is commonly opposed.)
And this is where the ghost of the Scopes trial appears again. Ever since that trial, the presumption has been that anyone who opposes the theory of evolution has primarily religious reasons for doing so. Justice Scalia in his dissent in Edwards v. Aguillard referred to this as "an intellectual predisposition created by the facts and the legend of Scopes. . .an instinctive reaction that any governmentally imposed requirements bearing upon the teaching of evolution must be a manifestation of Christian fundamentalist repression." The burden of proof is now on those who oppose evolution to prove that they do not have religious reasons for doing so, and that is a high standard to meet.
In a further telling statement that has direct implications for the Discovery Institute's 'teach the controversy' strategy, Judge Jones said:
ID's backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM [Intelligent Design Movement] is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID. (p. 89)
In other words, he had seen right through the entire 'Wedge' strategy. After all, their strategy had precisely been to single out evolutionary theory for special treatment. They have resolutely opposed any attempt to call for 'critical analysis' and 'teaching the controversy' in all areas of science.
There is no way to see the Dover ruling as anything but a devastating blow to the entire stealth strategy promoted by the Discovery Institute. It took apart every element of their carefully constructed edifice, leaving only rubble.
Judge Jones delivered his verdict on December 20, 2005. Just after the trial ended on November 4, the Dover school board elections were held and a slate of anti-IDC candidates, including one of plaintiffs, were elected to the school board, replacing all eight of the former pro-IDC people who were up for re-election. As a result, the Dover verdict will not be appealed to a higher court and thus, like the Scopes trial, will not formally set a legal precedent for the nation.
But the impact of Dover, like that of Scopes, will be far ranging. Its consequences started to be felt almost immediately, as we will see in the next posting.
POST SCRIPT: Lesson in magic from the masters
Those two wonderful magicians Penn and Teller show how sleight of hand works.