Strengthening Constitutional Self-Government


Irreducible Hostility: Intelligent Design in the Courts


January 2006

by Joseph M. Knippenberg

Last month, federal Judge John E. Jones III issued what he expects will be a definitive ruling on the teaching of “Intelligent Design,” not only to the ninth graders in the Dover (Pennsylvania) Area School District, but to students across the country as a whole. “No other tribunal,” he claims, “is in a better position than are we to traipse into this controversial area.” His thoroughness, evinced in his 139-page opinion, will, he hopes, “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.”

Fortunately (or unfortunately, depending upon your point of view), Judge Jones’s hopes are destined to be dashed. There are enough problems with his account of Intelligent Design and its relationship to contemporary science and science education to prevent any but the most ardent apologists for Darwinian orthodoxy from regarding the issue as settled. While it isn’t obvious (for reasons that will become clear later) that the School District should have won this case, it is evident that Judge Jones seriously overreached in rendering his judgment.

Before we proceed, it’s necessary to rehearse the facts of the case. In October, 2004, the Dover Area School Board adopted a policy requiring teachers to read the following statement to 9th grade biology students, beginning in January, 2005:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.
Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.
Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book,
Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.
With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individuals and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

The plaintiffs, all of whom are parents with children in the Dover Area School District, contend that this statement amounts to an establishment of religion. Judge Jones agreed, finding that it “endorses” religion, contravening the “endorsement test” (first articulated by Sandra Day O’Connor in the 1984 case, Lynch v. Donnelly), and that it has the purpose and effect of advancing religion, thereby violating the Lemon test (first articulated in the 1971 case, Lemon v. Kurtzman).

Since the Board’s statement doesn’t explicitly mention, let alone endorse, religion, Judge Jones has some explaining to do. Much of his argument follows the trail blazed earlier this year by Judge Clarence Cooper in Selman v. Cobb County School District, currently under review by the 11th Circuit Court of Appeals. Cooper and Jones seem to agree that making use of the “theory/fact” distinction in criticizing the theory of evolution is largely the preserve of those who object to it on religious grounds. While early efforts to protect or affirm the Biblical view of Creation either prohibited the teaching of evolution or called for giving equal time to “Darwinism” and “creation science,” the new critics of Darwin are much more subtle, not actually mentioning creation and simply calling attention to problems or “gaps” in the evolutionary narrative.

Both judges assert that the only conceivable motive one could have for singling out and criticizing Darwin in these terms is a religious one. As such, the attempt even to mention such criticisms of Darwinism can only be an effort to promote religion. Any claim of a secular motive—such as the promotion of “critical thinking”—must be either be a sham or clearly secondary to the primary (and constitutionally impermissible) religious purpose.

It would of course be naïve to deny that much of the energy that goes into criticizing Darwin and Darwinism in contemporary America is drawn from religious sources. But it is not clear that the predominant motive itself can or ought to be sufficient to render the policy unconstitutional. If that were the case, then many of the most powerful social reform movements in American history—anti-slavery, civil rights, temperance, and, yes, anti-abortion—would also be unconstitutional.

Courts have consistently held that the First Amendment requires that religious purposes be accompanied by serious, not sham, secular purposes. One’s sole purpose in enacting a piece of legislation or pursuing a policy cannot be to promote a purely religious point of view. If one can articulate one’s position in a way that doesn’t depend solely upon faith or revelation, if one offers reasons accessible to all, that should be sufficient.

Unfortunately, it hasn’t been; the context and sequence of the reasons seems to matter. If, for example, the secular purposes are offered after the religious purposes, if they are articulated in response to, say, objections grounded in the First Amendment, then courts have been wary of them. Thus in this past summer’s McCreary case, dealing with a Ten Commandments display in Kentucky, the county’s efforts to recast its display in such a way as to meet objections were treated as mere efforts to save the originally religiously-motivated display. In Wallace v. Jaffree, a 1985 case dealing with Alabama’s “moment of silence” legislation, the fact that the second version of the legislation, not the first, mentioned “voluntary prayer” as one of the possible uses of the moment was sufficient, in the majority’s eyes, to render it unconstitutional. Since previous versions of the law hadn’t mentioned that use of the time, the only conceivable purpose that could be served by the amendment was a religious one. Of course, if the original legislation had mentioned both meditation and voluntary prayer, treating them as equally valid uses of the moment of silence, it would be hard to find a valid constitutional ground on the basis of which to object. These are the paradoxical results to which the Supreme Court’s efforts at policing the way people think have led: laws or practices that would arguably have been regarded as constitutional at one moment in the process are said to be unconstitutional if they are adopted at a different moment, all because the sequence of events is said to reveal an essentially impermissible motive.

As I indicated earlier, the two evolution disclaimer decisions handed down in 2005 follow this line of thinking. Both federal district judges have held that the only motive for criticizing evolution is an impermissibly religious one, despite the fact that in neither case did the school district use explicitly religious language. In the Selman case, the mere fact that the disclaimer language was “unscientific” (and commonly used by religious critics of Darwinism) was sufficient to render it unconstitutional. Granting for the sake of the argument that the language—distinguishing “theory” and “fact”—is scientifically and pedagogically dubious, that by itself couldn’t make it unconstitutional. If pedagogical questionableness were sufficient to make a curriculum constitutionally suspect, federal judges would be even more heavily involved in school policy than they have been. In every other case, we let the ordinary processes of professional criticism and school board politics correct these missteps (or not). The fact that the disclaimer (expressed in “reasonable,” not religious, language) in Georgia’s Cobb County might weaken science education (something, by the way, for which no actual evidence was offered at trial) might well be a subject of concern and debate for citizens, parents, and school authorities, but not for federal judges.

The Dover case is a little different, since the disclaimer explicitly mentions “Intelligent Design” as an alternative to Darwinian evolution. For Judge Jones, this is fatal, since “the religious nature of ID would be readily apparent to an objective observer, adult or child.” It is, he says, “an old religious argument for the existence of God”:

Wherever complex design exists, there must have been a designer; nature is complex; therefore nature must have had an intelligent designer.

Well, yes, this is an old argument for the existence of God or a god, but not one offered exclusively by Christians or by religious people. Indeed, it is an argument from reason, not from revelation, an argument in philosophy, or perhaps philosophical theology. As a rational argument, its conclusion yields not the God of the Judeo-Christian or Abrahamic tradition (whose precise character and relationship with us we know, such as we can, from revelation), but merely an intelligible and intelligent first, or uncaused, cause. This cause need not have a personality; it need not love us; it need not care for or about us; it need not be just or merciful. None of these attributes commonly ascribed to the God of Abraham, Isaac, and Jacob follows from this argument. Jews, Christians, and Muslims might well identify this first cause with the God revealed to them in their scriptures. Given the overwhelmingly religious nature of the American people, there may statistically be very few who are outside these traditions who take this argument seriously. Neither of these facts makes this argument anything other than what it is: a rational argument, in principle accessible to anyone who has reason. That it is thus accessible doesn’t make it unquestionable, uncriticizable, or absolutely certain. But it also doesn’t itself yield or promote a particular religious view.

Judge Jones further contends that because ID points to a first cause that must be outside of nature (defined as a collection of events that are part of a sequence of causes and effects), it is religious. “[I]n [the] Western intellectual tradition, non-natural causes occupy a space reserved for ultimate religious explanations.” If this were true, then Plato’s “doctrine of the ideas,” must be a religious doctrine, since the idea of the Good is said to be “beyond being,” somehow causing everything but itself not caused by anything else. Does this mean that one could not teach the history and philosophy of science as part of a high school science curriculum without running afoul of the First Amendment?

This, then, is where Judge Jones would leave us: the fact that religious people agree with a rational argument is sufficient to make that argument religious and, consequently, to make it impermissible for a school board even to suggest it as an alternative to widely-held scientific orthodoxy. An argument that does not demand, but simply permits one to supply, a religious conclusion is religious and hence impermissible.

This, by the way, would also be true of evolution, since there are religious believers who hold to the doctrine of “theistic evolution.” Is evolution too out of bounds because it’s possible for religious believers to hold it as part of their religious understanding?

To say the least, Judge Jones’s conclusions about the law depend upon a rather unsophisticated understanding of philosophy and theology. If ever there were need for a case study to demonstrate how the practice of law ought to rest on a foundation of liberal learning, Judge Jones’s opinion here would provide it.

Let me offer one further example of what is either his relative lack of sophistication or perhaps his disingenuousness. At one point, he cites the Supreme Court’s 1987 Edwards v. Aguillard decision (invalidating Louisiana’s law requiring balanced treatment of evolution and creation science) to the following effect:

Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.

This expression of solicitude for “private beliefs” is deployed against attempts to use the public school curriculum to promote religion. But Judge Jones expresses no similar solicitude for private beliefs when the purpose is to promote evolution or the critical thinking (presumably about religion) that is said to accompany it:

[B]y directing students to their families to learn about the “Origins of Life,” the [final] paragraph [of the Dover statement] performs the exact same function as did the Freiler disclaimer: It “reminds school children that they can rightly maintain beliefs taught by their parents on the subject of the origin of life,” thereby stifling the critical thinking that the class’s study of evolutionary theory might otherwise prompt, to protect a religious view from what the Board considers to be a threat. (My emphasis.)

We are to respect family privacy when it comes to promoting potentially competing religious views, but not when it comes to promoting competing scientific views. Judge Jones seems clearly to be aware that science and religion are at odds here, that the spheres of science and religion are not easily separable, but does not seem to regard it as a violation of the state’s neutrality to put a thumb on the scale in favor of science or in the eye of religion. We can establish and protect scientific orthodoxy, but not religious orthodoxy.

I can think of only one “defense” of this otherwise indefensible opinion: the seemingly obnoxious behavior of the pro-Intelligent Design members of the Dover Area School Board drove Judge Jones to it. By his account, they were bullies at Board meetings and liars on the witness stand (though it is not clear that he ever held them in contempt of court or demanded that they be charged with perjury). They intimidated their colleagues and called them names, acting, apparently, in a most un-Christian manner. They were high-handed in their dealings with the teachers and education professionals. In short, they seemed to invite some sort of blowback.

And the School Board came close to giving away the store in the way that they handled the disclaimer. First, there was to be no discussion after it was read to the students, which implied that somehow the subject was too sensitive for the classroom. Second, students and parents were offered the opportunity to opt out of hearing the disclaimer, as if it were potentially offensive or problematical, perhaps for the reasons Judge Jones suggests. If Intelligent Design is actually or potentially a legitimate contender with Darwinism, if it’s not simply a stalking horse for revealed religion, or if it actually is an appropriate topic for classroom consideration, then it need not have been handled in this way. To be so circumspect is to imply an awareness that one is coming close to a constitutional line.

For the time being, Judge Jones’s opinion will stand in Pennsylvania’s Middle District. The old School Board having been sent packing by the voters, their successors are utterly uninterested in filing an appeal. But given the flaws in the decision, both in terms of the characterization of Intelligent Design as mere religion and of the application of problematical First Amendment tests (which may be revised by a new Supreme Court majority), the Judge has hardly achieved his intention of laying the matter to rest once and for all.

Joseph M. Knippenberg is an adjunct fellow of the Ashbrook Center. He is Professor of Politics and Associate Provost for Student Achievement at Oglethorpe University.