The Dover Intelligent Design Decision

Here is a link to Judge Jones decision in the Dover PA "Intelligent Design" decision. It is 132 pages long, but it is double spaced and is actually a pretty quick (and interesting) read. But for those of you who want the "Cliff Notes" version here it is:

Intelligent design posits -- indeed depends on -- the unsubstantiated supposition that there is a supernatural creator. As such, it is a theory rooted in religion, not science. Everyone knows that. And, everyone also knows that a state endorsement of intellgent design it is an endorsement of a particular religious belief. State endorsement of religious beliefs is prohibited by the Establishment Clause of the US Constitution. In addition, the evidence in the case makes clear that the purpose and effect of the Board in mandating that teachers inform their students of the Intelligent Design alternative was to advance a particular religiously based belief on the origins of life. For both of these reasons, the school board's action violated the constitutional ban on establishment of religion.

The more intersting aspect of the case actually has little to do with the Constitution. Judge Jones goes on at considerable length to address the scientific substance of Intelligent Design, concluding, essentially, that it is utter nonesense, at least from anything that approximates a "scientific" perspective. This part of the opinion owes much to "Finding Darwin's God" by Kenneth Miller, who was a Plaintiff's expert witness in the case. And, if I may say so, Miller's conclusions are summarized both more succinctly and more eloquently in my own post on the subject in August.

Be that as it may, what's interesting is why Judge Jones felt compelled to spend 50 or so pages of his decision rebutting intelligent design on the scientific merits. The question of whether ID is "right" or "wrong" or whether it is "scientific" or "unscientific" has nothing at all to do with the Constitutional issue, which is settled once the court concludes (as it pretty obviously had to given the evidence) that the purpose of the the Board's action was to advance a religious belief as to the origins of life and it's effect was to amount to an endorsement of that belief.

My sense is that one reason for the digression was Judge Jones' (probably vain) hope that he could drive a stake in the heart of the Intelligent Design, and thereby save other courts from havng to deal with the issue. In addition, though, it may be a reflection of the fact that "truth" or at least "believability" of intelligent design was important to the Judge himslef. That is, despite the evidence of religious purpose and effect, he needed to prove to himself (and others) that the theory was also bad, bad pedagogy. It is as if the judge felt compelled to say that, beyond the formalistic legal problems, the theory itself was nonsense and that he would not stand idly by while such nonsense was taught to our children.

In this, the decision seems, at least subconciously, to accept Sam Harris' admonition that, for the good of us all, we have to start calling religious belief by it's real name: lunacy.

I don't disagree. But as a lawyer, bound as I am to think about these issues in terms of precedent and legal formalisms, I must confess to a bit of unease here. How does the "free exercise" clause fit into this? The core complaint of those advocating intelligent design is that evolution is anathema to the religious beliefs they are trying to pass on to their children. Their cri d'couer is: "But, you honor, they are teaching my children things that are inconsistent with my (and their) religious beliefs! Do I not have any right to object to public school teachings that are directly contrary to my own religious beliefs? How is that not inconsistent with the Constitutional guarantee that I will be free to believe as I want to believe?"

The only answer to this question is, I fear, that YOU are free to teach your children whatever you want. But, when it comes to public schools, that are run by the state and that are teaching ALL of the children in the community, we are not going to teach intelligent design any more than we are going to teach alchemy, astrology or animism just becuase there are lunatics out there who believe that nonsense. In short, YOU are free to believe whatever you want to, and to try to inculcate such beliefs in your children. But the state is going to insist that there be some evidence to support the thoeries it teaches all children.

Maybe Sam is right. The debate at this level is actually far more candid and, in the end, far fairer to both sides that are the arid formalisms of the Supreme Court's Establishment Clause jurisprudence.