JURIST Guest Columnist Stephen Gey
of Florida State University College of Law says that the most important aspect of US District Judge John E. Jones III's Kitzmiller
ruling on the teaching of "intelligent design" is not its constitutional analysis, but its meticulous demonstration that ID is sham science ...
ast week the science community in the United States got an early Christmas present from federal district court Judge John E. Jones III. In a comprehensive 139-page opinion in Kitzmiller v. Dover School District
, Judge Jones held as a matter of law what scientists have been saying publicly for years: that “Intelligent Design” is little more than a slightly disguised version of the old time religion of creationism, and that as such it may not be taught in public school classrooms.
This is not the first time that a court has had to explain why the religious doctrine of creationism does not belong in a science class. During the last forty years the US Supreme Court and lower federal courts repeatedly have rejected attempts to insert religious creation stories into public school science classes. In one sense, therefore, Kitzmiller
is merely the latest in a long line of creationist losses in the courts. But even if the result was predictable, Judge Jones’ extraordinary opinion in Kitzmiller
has three distinctive features that make it one of the most important of all the creationism decisions.
The first distinctive aspect of Judge Jones’ opinion is his willingness to go beyond the courts’ usual narrow approach to creationism cases. Most judicial opinions prohibiting the introduction of creationism into public school science curricula take the simplest approach by focusing on the unmistakably religious purpose behind such efforts. By favoring this approach, the courts have followed the Supreme Court’s lead. In both Epperson v. Arkansas
(1968) and Edwards v. Aguillard
(1987), the Supreme Court struck down creationism mandates on the ground that the government officials imposing the mandates were motivated primarily by religious purposes.
The courts prefer to focus on the government’s purpose because this approach allows them to avoid rendering a detailed description of why creationist ideas are inherently religious. Unfortunately, by focusing on the government’s purpose instead of the nature of the creationist ideas themselves, the courts have limited the scope of their opinions and invited creationism proponents to introduce new mandates backed by “clean” legislative records that are carefully constructed to avoid references to the government’s religious purpose.
, Judge Jones based his decision that the Dover ID policy was unconstitutional partly on the usual ground that the board was motivated by religious purposes. The defendants gave Judge Jones a great deal of material to support his ruling on this issue. There was abundant evidence that the Dover school board’s decision to introduce ID into the science curriculum was motivated by several board members’ religious views, and additional evidence that board members disingenuously tried to deny their true intent. As Judge Jones noted, several board members “would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.”
The striking thing about Judge Jones’ Kitzmiller
opinion is that the judge did not stop with the determination that the Dover school board acted with an impermissible religious motive. Judge Jones went on to hold that the inclusion of ID in the science curriculum had an impermissible religious effect and illegally conveyed the government’s endorsement of religion. These are daunting issues in ID cases because to decide these issues a judge has to assess whether in addition to its obvious religious components, ID has any independent validity as science. Judge Jones undertook this task with relish, and his detailed findings on the scientific bona fides of ID are the second distinctive portion of his opinion. The critique of ID and science is the most important part of the Kitzmiller
opinion, because Judge Jones’ analysis and ultimate conclusion probably drives a stake into the heart of the ID proponents’ crusade to circumvent the Establishment Clause.
trial featured weeks of expert testimony from some of the leading lights of the ID movement as well as leading mainstream scientists. Ever since ID became the primary stalking horse for the introduction of creationism into science classrooms, the centerpiece of the ID project has been to pass the doctrine off as an equally plausible secular alternative to mainstream science. ID proponents frequently try to conscript the likes of Thomas Kuhn in defense of their cause, arguing that ID is a revolutionary paradigm shift in the approach to biological sciences, analogous to the development of the big bang theory in cosmology.
The problem with this effort is that ID, by its own terms, rejects the fundamental structure of modern scientific practice and theory—a structure defined at every step by methodological naturalism. In Kitzmiller
, Judge Jones meticulously described the extent to which ID proponents reject the most basic premises of the modern scientific enterprise by insisting that supernatural explanations must now count for science alongside the naturalistic factual inquiries that Kuhn and other philosophers of science assert will periodically lead to radical shifts in the direction of scientific research. Expanding the current conception of science to include unquestioned and untestable supernatural explanations for natural phenomena could be described as a “paradigm shift,” but it is hardly the sort of shift that Thomas Kuhn had in mind. In the end, Judge Jones summed up the expert testimony nicely: “ID is at best ‘fringe science’ which has achieved no acceptance in the scientific community.”
This conclusion will come as no surprise to members of the mainstream scientific community. ID has produced no testable theories, no independent research, no significant discoveries, and nothing of importance to those outside the religious community that takes to heart ID’s theological premises. Judge Jones did everyone a great service by detailing the many reasons that ID fails as science. After Kitzmiller
, the ID effort to recast creationism as serious science is effectively dead. The clear implication of this holding is that attempts to inject ID into public school curricula will always be unconstitutional, regardless of whether these attempts are accompanied by disingenuous assertions of a secular purpose by the relevant educational authorities.
The third distinctive part of Judge Jones’ opinion is its tone. Judge Jones’ delivered some very harsh conclusions about the Dover school board’s efforts to advance ID as science. According to the judge, “The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial.” The school board’s efforts resulted in an “utter waste of monetary and personal resources.” The same conclusions will apply to any other school board that buys into the ID project. Although these statements by the judge have been criticized by ID proponents, the truth is that for the first time a judge has uttered in a formal capacity what the scientific community has known all along: the ID claims for scientific legitimacy are not just a sham (as the Supreme Court once described an earlier argument for creationism), but also a scam.
One of the most entertaining portions of the Kitzmiller trial was when ID stalwart Michael Behe explained under cross-examination that under the ID version of science astrology would count as science. At this point in the testimony, the ID claim to be treated as an authentic scientific endeavor effectively collapsed. If we learn nothing else from Kitzmiller
, it is that we should stop taking arguments on behalf of ID and creationism seriously outside their theological context. The earth is not flat, the moon is not made of green cheese, astrology is not science, ID does not belong in a science class, and we should stop pretending that any of these propositions are worthy of serious debate. Stephen G. Gey is David and Deborah Fonvielle and Donald and Janet Hinkle Professor of Law at Florida State University College of Law.