Posted by Timothy Sandefur on December 21, 2005 03:59 PM

Over at the shell-shocked Discovery [sic] Institute’s blog, Casey Luskin lists ten complaints about the Kitzmiller decision. Much of it is predictable foot-stamping (“ID’s not, not, not religion!”) but it’s worth some quick responses nevertheless.

10) ID is religion, not science

This is the most basic, and most basically correct, element of the decision. Intelligent Design postulates a supernatural entity as the Creator of species. Although it dresses itself up as science, all that ID really boils down to is, “wow, this stuff is so sophisticated, it simply must have been designed, not evolved through natural processes.” That fact has been demonstrated time and again by countless sources, including countless posts on the Thumb. And, of course, the Judge explains the religious nature of ID thoroughly in the opinion itself. Among other things, he writes,

We initially note that John Haught, a theologian who testified as an expert witness for Plaintiffs and who has written extensively on the subject of evolution and religion, succinctly explained to the Court that the argument for ID is not a new scientific argument, but is rather an old religious argument for the existence of God. He traced this argument back to at least Thomas Aquinas in the 13th century, who framed the argument as a syllogism: Wherever complex design exists, there must have been a designer; nature is complex; therefore nature must have had an intelligent designer. Dr. Haught testified that Aquinas was explicit that this intelligent designer “everyone understands to be God.” The syllogism described by Dr. Haught is essentially the same argument for ID as presented by defense expert witnesses Professors Behe and Minnich who employ the phrase “purposeful arrangement of parts.”

Slip op. at 24 (citations omitted). Far from ignoring the testimony of, in Luskin’s words, “both pro-ID expert scientists [sic],” the Judge considered the evidence, and put it to the proper test. The conclusion was correct.

9) Luskin complains that Judge Jones “overreache[d] the judicial arm by ruling that the nature of science is characterized by methodological naturalism and that intelligent design is not science.” This, he says, is not an issue for a court to rule on. But this is silly. Of course it is within the proper role of the judiciary to determine whether ID is science or religion. Probably the main function of a trial court is to look at a disputed thing and decide whether it is X or whether it is Y. Every first-year law student knows the justly famous “What is Chicken?” case, Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp 116 (S.D.N.Y. 1960). See also Avon Products, Inc. v. S.C. Johnson & Son, Inc., 984 F.Supp. 768, 770 (S.D.N.Y. 1997) (“This case poses the question ‘What is insect repellent?’”); United States v. Johnson, 700 F.2d 163, 173 (5th Cir. 1983) (“whether an amusement park bumper car or even a riding lawnmower is a ‘motor vehicle.’”)

Of course a court can decide whether ID is religion or science. It does so by identifying the distinguishing characteristics of religion and of science, and then assessing whether ID has the characteristics of the latter or the former. Religion certainly has been hard for courts to define, see, e.g., Note: Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056 (1978), just as science is hard to precisely define, there is nevertheless no reason that courts are somehow able to decide whether a thing is a chicken or whether a thing is insect repellent, or whether a thing is a murder or a manslaughter—yet somehow unable to decide whether a thing is religion or science. In fact, courts have done a pretty decent job of defining religion, so far as it has been necessary. See, e.g., United States v. Meyers, 906 F.Supp. 1494, 1502-03 (D. Wyo. 1995). And there is certainly no reason why courts can’t decide that science is characterized by methodological naturalism. If a judge can decide that a murder is characterized by malice aforethought, or that techno music “is characterized by a very fast beat, up to 200 beats per minute,” Bottles v. Rentz, 1997 WL 677959 (Ohio Ct. App. Oct. 31, 1997), or that poker is a game of cards, Inman v. State, 85 S.W. 796, 796 (Tex. Crim. App. 1905), then surely a judge can decide that science is characterized by methodological naturalism. How? By asking scientists what they do, by observing what scientists do, and asking critics of science what they do differently. That’s just what the judge did here, what courts have done many times before—see, e.g., McLean v. Arkansas Bd. of Ed., 529 F.Supp. 1255, 1267 (D. Ark. 1982); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94 (1993).

8) Luskin complains that Kitzmiller “overreaches the judicial arm by ruling that evolution is compatible with religion.” Of course, Judge Jones did not actually rule this. What he found was that the testimony did not support the “presupposition...that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general.” Slip op. at 136. He based this conclusion on extensive expert testimony. This is no more beyond the pale than it is for a judge to, for example, reject a plaintiff’s claim of religious discrimination on the grounds that the person had failed to provide evidence that his religion was incompatible with an employment requirement. See, e.g., Pfenning v. Lufthansa German Airlines, 1998 WL 159925, at *3 (E.D.N.Y. 1998). Obviously, as an abstract matter, a judge can’t rule on the truth or falsehood of a religious doctrine. But by observing the fact that many religious people believe in evolution, a judge certainly can decide that religion and evolution are not in necessary conflict. (And why does this bother ID proponents, anyway, since they contend that ID isn’t religion in any case?)

7) Luskin complains that Jones “overreache[d] the judicial arm by ruling that evolution is a solid theory and that irreducible complexity has been refuted.” But, of course, there is no reason judges can’t declare the truth to be true, even if the truth in question is a scientific matter that bothers a lot of people. Courts can “tak[e] judicial notice of the invalidity of...astrology or phrenology,” United States v. Downing, 753 F.2d 1224, 1238 n. 18 (3d Cir. 1985). They can take judicial notice of the weakness of unrepeatable, or non-peer reviewed matters. See Daubert, supra. In fact, what else do courts do other than decide whether certain claims, supported by scientific evidence, are true or not? Courts ruling on traffic accidents take evidence based on physics all the time, and determine that Newton’s laws are “solid theory.” The fundamental role of a trial judge is to find facts. The fact is that evolution is far more than a solid theory—it is as true as anything we know about the world, supported by mountains of scientific evidence. And the fact is that irreducible complexity, insofar as the notion has any meaning at all, has been refuted.

6) Oddly, Luskin claims that the ruling “sadly threatens the teaching of evolution by making religious motivations of public proponents a relevant factor in deciding whether or not a theory can be taught.” This is strange. Religious motivations have always been considered a relevant factor in Establishment Clause cases as well as Free Exercise Clause cases. See, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). The Lemon test—the only workable Establishment Clause test ever developed by the Court—has always held that religious motivation is a factor to be considered. Even facially neutral laws (which the ID policy in Dover was not) are assessed for religious motivation. See Employment Division v. Smith, 494 U.S. 872 (1990). And, of course, since evolution is a scientific fact, and not a religious proposition, it hardly threatens evolution education to hold that public officials cannot adopt policies that lack a secular purpose.

5) “It wrongly approves of the ‘it’s wrong to single out evolution’ argument which was validated in Selman. (pg. 39-40) and wrongly claims ‘evolution is theory ... not fact’ language is unconstitutional based upon Selman (which may be overruled on that point anyway).” Well, this is just footstamping. The decision makes clear why singling out evolution in the manner the school board did—an obvious indicator that a religious message is being sent—is unconstitutional.

4) Again, strangely, Luskin contends that the Kitzmiller case “sadly threatens the teaching of evolution by using the endorsement test to determine if a scientific theory of biological origins would endorse (or presumably ‘dis-endorse’) the teaching of a controversial idea in the eyes of the average citizen.” There are two things wrong with this complaint. First, of course, the Endorsement Test is a legitimate test to apply, for the reasons that Judge Jones explained at length. The Establishment Clause forbids the government from endorsing any particular religious viewpoint as true. What else the Establishment Clause could possibly mean escapes me. And, of course, Judge Jones used the Endorsement Test as well as other tests in his “belt and suspenders” approach.

Second, however, note the clever bundling of “endorse” with “‘dis-endorse.’” It is of course true that the government may not persecute a religious viewpoint. But it does not follow that the government is prohibited from making statements which some believe are incompatible with their religion. I’ve blogged this many times. The government is entirely free to make statements, not only about the truth or falsehood of contended facts, but even normative statements that might conflict with various religious viewpoints (e.g., “Islam is a religion of peace.”) In fact, the government can criticize religious viewpoints, so long as it does not prohibit the free exercise thereof. Luskin’s hint that evolution “dis-endorses” religion and therefore is threatened by the Kitzmiller decision is a poor attempt at a red herring.

3) ID proponents have published no peer-reviewed papers.

Here, Luskin indulges in more footstamping. In fact, the court was “presented with no evidence that either Defendants’ testifying experts or any other ID proponents, including [Of] Pandas [And People’s] authors, have...published peer-reviewed literature or presented such information at scientific conferences on paleontology or the fossil record.” Slip op. at 84 n. 15. Luskin may say it’s false, but that’s what losing litigants always say. In fact, the court was correct. Even Michael Behe “admitted that: ‘There are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred’...[and] conceded that there are no peer-reviewed papers supporting hsi claims that complex molecular systems...were intelligently designed.” Slip op. at 88.

2) Luskin claims that Kitzmiller “completely ignores ALL of the statements in Pandas making it clear that ID is NOT a supernatural explanation—the Judge doesn’t even mention with these statements, much less explain why the Court disagrees with them.” This is, at best, a great distortion of fact. The decision mentions Pandas about 70 times, and finds that its protestations of secularism are as unconvincing as those of other ID proponents: “[A]n explicit concession that the intelligent designer works outside the laws of nature and science and a direct reference to religion is Pandas’ rhetorical statement, ‘What kind of intelligent agent was it [the designer]’ and answer: ‘On its own science cannot answer this question. It must leave it to religion and philosophy.” Slip. op. at 26. More, Judge Jones found that Pandas was actually “the strongest evidence supporting the finding of ID’s creationist nature.” Id. at 31. Why? It’s published by a Christian orgaization, was written by creationists, went through several drafts which simply replaced references to creation with references to design—“a purposeful change of words...without any corresponding change in content,” id. at 32—all of which facts the ID proponents “failed to rebut.” Id. at 35. Luskin may complain that the judge was wrong, wrong, wrong, but to suggest that the judge simply ignored the content of Pandas is extremely misleading. Fortunately, people can read the decision for themselves.

1) Finally, Luskin finds it “incredibl[e]” that “this trial court decision describes itself as the final answer for all courts, behaving and talking like it was handed down from the Supreme Court, as precedent for all.” Of course, Judge Jones does no such thing. The passage to which Luskin refers (on page 63) reads, “The Court is confident that no other tribunal in the United States is in a better position that we are to traipse into this controversial area.” Jones means, of course, that after such an extensive trial with so much important and weighty evidence, the trial court is in the best position to make this decision. This obviously is not any kind of challenge to the authority of the Supreme Court—the Supreme Court may very well hear this case later on, if it wishes. Instead, it is saying what is obviously true—and would be conceded by the Supreme Court itself—that a trial judge is in the best position to weigh the facts of a dispute and the evidence provided by the parties. No serious attorney would dispute that a trial court, having the evidence before it, is in the best position to traipse into the area controverted between the parties. Obviously the Third Circuit and the Supreme Court could reverse this decision for legal reasons, but as far as the facts are concerned, the buck stops at Judge John Jones—as well it ought to.