Author: Ophelia Benson

This blog has a rather lengthy compendium of links pertaining to yesterday’s court decision. The New York Times, meanwhile, has run a pleasingly direct editorial:

Judge Jones’s decision was a striking repudiation of intelligent design, given that Dover’s policy was minimally intrusive on classroom teaching. Administrators merely read a brief disclaimer at the beginning of a class asserting that evolution was a theory, not a fact; that there were gaps in the evidence for evolution; and that intelligent design provided an alternative explanation and could be further explored by consulting a book in the school library. Yet even that minimal statement amounted to an endorsement of religion, the judge concluded, because it caused students to doubt the theory of evolution without scientific justification and presented them with a religious alternative masquerading as a scientific theory.

The case was most notable for its searching inquiry into whether intelligent design could be considered science. The answer, after a six-week trial that included hours of expert testimony, was a resounding no.

The judge found that intelligent design violated the centuries-old ground rules of science by invoking supernatural causation and by making assertions that cannot be tested or proved wrong. Moreover, intelligent design has not gained acceptance in the scientific community, has not been supported by peer-reviewed research, and has not generated a research and testing program of its own. The core argument for intelligent design – the supposedly irreducible complexity of key biological systems – has clear theological overtones. As long ago as the 13th century, St. Thomas Aquinas argued that because nature is complex, it must have a designer.

The religious thrust behind Dover’s policy was unmistakable. The board members who pushed the policy through had repeatedly expressed religious reasons for opposing evolution, though they tried to dissemble during the trial. Judge Jones charged that the two ringleaders lied in depositions to hide the fact that they had raised money at a church to buy copies of an intelligent design textbook for the school library. He also found that board members were strikingly ignorant about intelligent design and that several individuals had lied time and again to hide their religious motivations for backing the concept. Their contention that they had a secular purpose – to improve science education and encourage critical thinking – was declared a sham.

Less pleasing is the intervention by Albert Alschuler, a distinguished criminal law expert at the University of Chicago, whose ill-informed and misleading comments on this decision have already been picked up with glee by the Discovery [sic] Institute shills. (The first commenter on the Chicago site corrects some of the errors in Professor Alschuler’s presentation as well.) Professor Alschuler writes:

The first amendment makes intelligent design unmentionable in the classroom.

But that is not what the decision held at all: it held that it violates the Establishment Clause to include Intelligent Design as part of the science curriculum or to teach it to schoolchildren as though it were in competition with Darwin’s theory of evolution by natural selection.

While professing to offer no opinion concerning the truth of intelligent design, the court consistently reveals its contempt for this theory.

But the theory warrants the contempt appropriate to misinformation and deceit, and which the court’s opinion detailed: it has generated no research program or results; it is supported by no evidence; it is creationism for those who have consulted a lawyer and a public relations expert. (See the summary at 64 of the opinion, which is then amply documented in the subsequent pages. The court could have put the point about supernatural causation more effectively, but otherwise the claims are sound.)

Most of the Dover opinion says in effect to the proponents of intelligent design, “We know who you are. You’re Bible-thumpers.” The opinion begins, “The religious movement known as Fundamentalism began in nineteenth century America as a response to social changes, new religious thought, and Darwinism. Religiously motivated groups pushed state legislatures to adopt laws prohibiting public schools from teaching evolution, culminating in the Scopes ‘monkey trial’ of 1925.” When the Fundamentalists (the court often capitalizes the word) found themselves unable to ban Darwinism, they championed “balanced treatment,” then “creation science,” and finally “intelligent design.” According to the court, the agenda never changed. Dover is simply Scopes trial redux. The proponents of intelligent design are guilty by association, and today’s yahoos are merely yesterday’s reincarnated.

There is no guilt-by-association argument in the court’s opinion, and this is a serious misrepresentation of the court’s methodical approach in this case, one that can not be rationalized by saying “in effect”. The court did not, in fact, “begin” with a discussion of fundamentalism; that discussion began on page 7 of the opinion in the context of establishing the constitutional standards governing adjudication of the controversy. To that end, the court, quite correctly, reviews the history of efforts to impose versions of creationism in the public schools and the constitutional standards that evolved in response to legal challenges. The court’s (uncontroversial) interpretation of the “effect” prong of the Lemon test (for Establishment Clause violations) leads it to conclude that to determine whether or not the Dover Board policy “endorses” religion the policy must be considered from the standpoint of an informed, objective observer–an observer who is informed, among other things, about the relevant historical and cultural context in which the policy is adopted. (See esp. 15-19 of the opinion.) Because the meaning or “effect” of the Dover Board’s actions can only be evaluated against the background of fundamentalist efforts to inject religion into the public school classroom, the court has to attend to that background. (A technical sidenote: the court, in fact, distinguished the “endorsement” test from the “effects” test, though noting that “the Lemon effect test largely covers the same ground as the endorsement test.” For reasons of simplicity, I’m just going to refer to the two interchangeably.)

If fundamentalism still means what it meant in the early twentieth century, however — accepting the Bible as literal truth — the champions of intelligent design are not fundamentalists. They uniformly disclaim reliance on the Book and focus only on where the biological evidence leads.

There is one irrelevant truth here and one falsehood. It is true, but irrelevant, that the ID proponents are not committed to the literal truth of the Book of Genesis: that is what they learned won’t fly from the last round of successful constitutional challenges in the 1980s. (As the court demonstrated (p. 33): “The weight of the evidence clearly demonstrates…that the systemic change from ‘creation’ to ‘intelligent design’ occurred sometime in 1987, after the Supreme Court’s important Edwards decision. This compelling evidence strongly supports Plantiffs’ assertion that ID is creationism re-labeled.”)

It is false, however, that proponents of ID “focus only on where the biological evidence leads,” and false for two reasons: first, no inference to the best explanation of the evidence would support positing an intelligent designer (as the court nicely puts it, “ID is at bottom premised upon a false dichotomy, namely, that to the extent evolutionary theory is discredited, ID is confirmed” [71]); and second, the ID proponents routinely misrepresent the biological evidence, finding inexplicable complexity where there is none; all of this was amply documented at the trial and in the court’s opinion (see esp. 76 ff.). All of this is old news to anyone who has followed these tiresome debates. All of it, alas, is absent from Professor Alschuler’s version.

The court’s response – “well, that’s what they say, but we know what they mean” – is uncivil, an illustration of the dismissive and contemptuous treatment that characterizes much contemporary discourse. Once we know who you are, we need not listen. We’ve heard it all already.

Unfortunately, the only party to this dispute saying “that’s what they say, but we know what they mean” is Professor Alschuler, who simply ignores page after page of the court’s opinion detailing the expert testimony and the evidence in the record as to the Dover Board’s purposes and the scientific standing of ID, and instead says that what the court “really means” is some version of the “guilt-by-association” argument it nowhere makes.

The court offers convincing evidence that some members 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 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 Dover opinion appears to say that the forbidden preference taints whatever the board may do, and if the public can discern the board’s improper desire, any action it takes also has an unconstitutional effect.

This confusing paragraph seems to conflate the “effect” and “purpose” prongs of Lemon, which are clearly distinguished by the court. The court argues that the Dover policy had the “effect” of endorsing religion (see esp. 38-42 of the opinion–or the summary at 49-50 [or at 63, for the case of the “effect” on adult members of the commmunity]); that dooms the policy quite independent of anyone’s purposes. The court also argues that, as an independent matter, the Dover Board’s policy fails the purpose prong of Lemon (90 ff.), and it reaches that conclusion on the basis of dozens of pages of evidence adduced at trial showing the clear religious objectives of Board members, as well as their attempts to cover-up those religious objectives. As the court concluded (132): “Any asserted secular purposes by the Board are a sham and are merely secondary to a religious objective.” That someone might have had a secular purpose for promoting a policy like Dover’s is irrelevant to what purposes state actors actually had in this case. (Of course, the problem is worse than that: all the evidence adduced in the context of analyzing the “effect” of the policy suggests that there could be no secular, scientific purpose for adopting the policy.)

Professor Alschuler’s intervention into this well-travelled terrain is not as bad, to be sure, as some other law professors who’ve written foolishly on this subject, but it is perhaps more troublesome because Alschuler is so much more prominent. Already, as we noted, the Discovery [sic] Institute folks are touting his remarks. Because the opinion is long, and most will not read it, the potential for unsuspecting readers to take Professor Alschuler’s inaccurate presentation of the opinion at face value is real. Here is hoping he will do better by the court’s opinion the next time around!

This article first appeared on The Leiter Report on December 22 and is republished here by permission. Brian Leiter is Joseph D. Jamail Centennial Chair in Law, Professor of Philosophy, and Director of the Law & Philosophy Program at the University of Texas at Austin. The Leiter Report is here.