Dover's Dominos:
Why Intelligent Design Creationism Will Lose

by Mano Singham

The Scottish poet Robert Burns in his poem To a Mouse cautioned those who place too much faith in detailed plans for the future. He said:

The best laid schemes o' Mice an' Men,
Gang aft agley.

When historians of the future write about the demise of Intelligent Design Creationism (IDC), they will likely point to the Dover, PA court decision as when the carefully thought-out plans and strategy of the IDC movement ganged agley in a big way.

If you recall, US District Judge John E. Jones III ruled on December 20, 2005 (Kitzmiller v. Dover) that the then Dover school board had acted unconstitutionally in its attempts to undermine the credibility of evolutionary theory in its biology class and in its attempt to promote IDC as a viable alternative. (See here for a previous posting giving the background to this topic.)

That case raised many fascinating issues and the final ruling clarified and put in perspective many of the issues clouding the role of intelligent design, science, religion, schools, and the US constitution. This series of posts that begins today will analyze that decision and the ripples it has caused throughout the country. I had been meaning to analyze the decision and its broader implications in depth for some time but kept getting deferred by other issues.

I should emphasize that what I think will disappear is the pretense that IDC is a scientific theory, to be treated on a par with natural selection. The underlying idea behind IDC (that god intervenes somehow in the world) will remain because that is an important component of any god-based religious system and has been around for a long time.

From time immemorial, people have invoked god to explain the things that seemed inexplicable. The advancement of science has merely resulted in the items in the list of inexplicable things changing with time, while the fundamental idea behind it has not changed. One can understand the seemingly unshakeable appeal of this idea for most religious believers. What would be the point of believing in a god who either could not or did not intervene in the workings of the world? The fact that such interventions cannot be demonstrated conclusively will not dissuade devout religious believers from their beliefs.

The formulation of what is now called intelligent design goes at least as far back as Thomas Aquinas in the 13th century. Theologian John Haught's testimony (Kitzmiller, p. 24) described Aquinas' views thusly:

Wherever complex design exists, there must be a designer; nature is complex; therefore nature must have had an intelligent designer. Aquinas was explicit that this intelligent designer "everyone understands to be God."

Christian theologian and apologist William Paley elaborated on this in 1802 in his book Natural Theology when he illustrated the inference of design by god by the example of finding a watch in a field:

[W]hen we come to inspect the watch, we perceive…that its several parts are framed and put together for a purpose…the inference we think is inevitable, that the watch must have had a maker.

Paley continues that since nature is far more complex than watches, "The marks of design are too strong to be got over. Design must have had a designer. That designer must have been a person. That person is GOD."

IDC theorist William Dembski's 2003 formulation of intelligent design follows this trend, with the example of the watch being updated to Mount Rushmore.

[W]hat about [Mount Rushmore] would provide convincing circumstantial evidence that it was due to a designing intelligence and not merely to wind and erosion? Designed objects like Mount Rushmore exhibit characteristic features or patterns that point to an intelligence. Such features or patterns constitute signs of intelligence (emphasis in original).

This whole line of reasoning was based on the premise that the existence of seemingly designed objects or smart animals and people necessarily required an even smarter designer. That kind of regressive argument inevitably led you to believe in something like a god.

Darwin's theory was a direct challenge to this idea because it showed us how it could be possible that life can bootstrap itself from primitive forms to increasingly complex and sophisticated ones. It reveals how you can have the appearance of design without any need for an actual designer. Thus the most intuitive argument for the existence of a higher being has been removed.

People like Daniel Dennett, author of Darwin's Dangerous Idea, and Richard Dawkins have relentlessly driven home the point that evolutionary theory has made belief in a god fundamentally unnecessary. As Dawkins says in his book The Blind Watchmaker (p. 6):

An atheist before Darwin could have said, following Hume: "I have no explanation for complex biological design. All I know is that God isn't a good explanation, so we must wait and hope that somebody comes up with a better one." I can't help feeling that such a position, though logically sound, would have left one feeling pretty unsatisfied, and that although atheism might have been logically tenable before Darwin, Darwin made it possible to be an intellectually fulfilled atheist.

I have written before of the story of the scientist-mathematician Laplace and his book called the System of the World. Napoleon is said to have noted that god did not appear in it, to which Laplace is supposed to have replied that "I have no need for that hypothesis." Given the state of science at that time, Laplace might have felt fully justified in saying so about the inanimate physical world but he would have been hard pressed to justify his claim for living things. Darwin was the one who later closed that gap.

Much of the religious opposition to Darwin's theory has been based on the claim that it promotes atheism. This is not quite correct. There are, after all, many religious biologists. What Darwin's theory does is remove whatever remaining necessity people might have felt for a god hypothesis, leaving it up to the individual to decide whether to believe in a god or not. Clearly, this removal of a major argument for the existence of god is likely to result in greater atheism, but the goal of those who teach evolutionary theory is not to promote atheism. It is to teach the best science.

Another reason that I think IDC ideas will fade away is that the five examples of 'irreducible complexity' that IDC advocates promote as giving proof of god's existence (because it is asserted that they cannot be explained by evolutionary processes) will eventually get chipped away and be explained by evolutionary theory. These five items are identified by IDC biochemist Michael Behe in his book Darwin's Black Box as the bacterial flagella and cilia, blood clotting mechanism, protein transport within a cell, evolution of the immune system, and metabolic pathways.

The process of explaining their creation using natural selection is already well underway with two of the five examples, blood clotting and the bacterial flagella.

The reason that I am confident that all these items will eventually be explained by science is based on the history of science. A similar process has happened with past seemingly inexplicable examples in nature (the stability of the solar system, the human eye, etc.) that have subsequently been explained away. To be sure, one can always come up with new unexplained phenomena since no scientific theory ever explains everything, but once you start shifting your target, your case for god becomes progressively less persuasive.

This is why most sophisticated theologians warn against believing in such a 'god of the gaps.' They argue that doing so results in the maneuvering space for god's actions becoming steadily smaller. It also seems a bit strange that god would choose to act only in such esoteric situations.

The Dover School Board Undermines the Wedge Strategy

The reason that Judge Jones' verdict in the Dover trial is likely to be so influential is because of the exhaustive nature of the testimony that he heard and the depth and comprehensiveness and scope of his ruling. In essence, the trial provided a place for IDC ideas to get a close examination under controlled conditions.

Prior to the trial, the case for and against IDC had been waged in the media, in legislative hearings, and in debates. As someone who has participated in many such things, I know that such forums can be a place where key ideas get examined and focused. But this happens only if the participants want them to. Otherwise skilled practitioners in those forums can evade tricky questions by diverting attention elsewhere and turn them into public relations exercises and question-begging.

But in a trial, with its fairly strict rules of evidence, it becomes much harder to make unchallenged statements. If you assert something, you have to be able to back it up and you cannot evade the issues easily since you will be cross-examined.

To be frank, the Dover trial was from the beginning a bad situation for the IDC people, especially the strategists at the Discovery Institute. Their whole approach up to that point had been to run a stealth campaign, based on a clever public relations strategy. They carefully avoided talk of god as much as possible (at least in public). They did not even insist on teaching intelligent design in schools. Instead they adopted the strategy of asserting that evolution was 'just a theory,' that it had problems, that there was a controversy over some of its basic tenets, and that good science and teaching practices required that students be exposed to the nature of the controversy.

Their slogan "teach the controversy" had a certain appeal, since people have an intuitive sense of fairness, and the assertion that students should hear all sides of an issue is sure to strike a responsive chord. Thus opinion polls tend to consistently show majorities in favor of "teaching all sides" or "teaching the controversy."

Presumably, the long-term strategy of the Discovery Institute was to first have the ideas of evolution undermined in this way, then later introduce IDC as an alternative to the undermined theory of evolution and lead to its discrediting, then bring god back into science education, and finally put god (and prayer) back into public schools everywhere. They saw this as a slow, incremental advance, taking many years to reach its goal.

The nature of this long-term plan is not entirely speculation on my part. The basic elements are outlined in the Discovery Institute's "Wedge Strategy" document which placed the blame for society's decline on the advancement of materialistic thought, of which they claim Darwinism was a major component. The document says:

The proposition that human beings are created in the image of God is one of the bedrock principles on which Western civilization was built. Its influence can be detected in most, if not all, of the West's greatest achievements, including representative democracy, human rights, free enterprise, and progress in the arts and sciences.

Yet a little over a century ago, this cardinal idea came under wholesale attack by intellectuals drawing on the discoveries of modern science. Debunking the traditional conceptions of both God and man, thinkers such as Charles Darwin, Karl Marx, and Sigmund Freud portrayed humans not as moral and spiritual beings, but as animals or machines who inhabited a universe ruled by purely impersonal forces and whose behavior and very thoughts were dictated by the unbending forces of biology, chemistry, and environment. This materialistic conception of reality eventually infected virtually every area of our culture, from politics and economics to literature and art.

The Wedge Strategy document says, among other things, that they seek "To replace materialistic explanations with the theistic understanding that nature and human beings are created by God."

But the former members of the Dover school board had no patience for this kind of subtlety and the slow, long-range plan envisaged by the Discovery Institute. They wanted god back in their schools and they wanted it now. So they created their own policy, which required students in biology classes to have a statement read to them that said, in 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.

In one stroke, the religious members of the Dover school board, thinking they were advancing god's work, destroyed the entire stealth strategy of the Discovery Institute. By explicitly naming and introducing IDC into the science class, they were inviting a court challenge and thus exposing it to direct judicial review, something the Discovery Institute had been carefully avoiding.

What is worse, they even advocated a book Of Pandas and People which had a blatantly creationist pedigree. The book has been around a long time and in its earlier incarnations it freely used the word 'creationism.' The reason that this book was a problem was that creationism (which roughly stood for the idea that god directly intervened in the creation of the world and its living things) had already been ruled by the US Supreme Court in 1987 to be a religious belief that had no place in public schools. After this setback, a 'new' edition of the book came out which seemed to differ from the earlier versions mainly in the fact that someone had used the 'search and replace' function of their word processor to remove all references to the word 'creationism' and replace it with 'intelligent design.'

It was because of that same court decision that the Discovery Institute had carefully avoided any mention of creationism in its work. In fact, the entire wedge strategy was based on tailoring a policy that avoided all the features of religion mentioned in the landmark 1987 decision, and thus would hopefully pass future constitutional scrutiny.

But the Dover board's action made a hash of that strategy, because it mixed creationism, IDC, and opposition to Darwin into one entangled mess. To make it worse, the advocates of this Dover policy made no secret of the motives for their actions, and in school board meetings and other public forums spoke about how they were doing this so as to bring god back into the schools. (See Matthew Chapman's article God or Gorilla in the February 2006 issue of Harper's Magazine for interesting insights into what was going on in that small town before and during the trial.)

These actions were going to come back and haunt them during the trial.

The Dover School Board Battles the Discovery Institute

The Dover school board members were encouraged to adopt their policy by the offer, when they encountered the inevitable legal challenge, of legal representation by the Thomas More Law Center, based in Michigan, and which was "created in 1999 by Thomas Monaghan, founder of Dominos Pizza and a philanthropist for conservative Catholic causes." The center supports all kinds of religion-based social policies, and was eager to take on the teaching of evolution theory in schools. To give you some idea of how extreme this group's views are, the president and chief counsel of the center Richard Thompson believes that:

Christianity is under siege from all quarters, but especially from the federal courts, the American Civil Liberties Union, and what Thompson calls the "homosexual lobby."

The ACLU and the courts are "basically cleansing America of religion and particularly Christianity," Thompson said. "It’s almost like a genocide. It’s a sophisticated genocide."

So it is clear that Thompson is a charter member (along with Bill O'Reilly) of the crazy cult that believes that it is Christians who are persecuted in the US. Anyone who uses the word "genocide" to describe the situation of Christians in the US clearly needs to lie down and take a nap until the fever passes.

The Thomas More center and the Dover school board were itching for a fight with those they saw as secular Darwinists. "Bring it on!" seemed to be their cry. Needless to say, the somewhat more sophisticated strategists at the Seattle-based Discovery Institute were not happy with their erstwhile allies in Dover shouting loudly about their blatantly religious motives. They could see their cautious, delicately-balanced, and expensive long-range plan, which depended upon carefully avoiding any mention of religion, falling apart because of the clumsy blundering of the Dover board, aided and even egged on by the Thomas More lawyers.

But once that die was cast and the Dover policy adopted, the Discovery Institute was placed in a quandary. The Thomas More center did not have the legal resources to mount the kind of sophisticated arguments necessary in such a case. Should the Discovery Institute completely disassociate themselves from the Dover school board actions and distance themselves from the case as it went down to likely defeat? Or should they throw themselves also into the fray, provide their own expert witnesses, pour all their considerable financial and legal resources into the case, and hope to secure victory from the jaws of an otherwise almost certain defeat?

In the end they waffled, initially agreeing to be part of the case, and then backing out when the Thomas More Law Center did not want the Discovery Institute's own lawyers representing their clients. This caused bad feelings on both sides which spilled out into the open, as The Toledo Blade reported on March 30, 2006:

In fact, when Mr. Thompson decided to defend the Dover intelligent design policy, he angered the group most associated with intelligent design: the Discovery Institute, a conservative think-tank based in Seattle.

“We were incredibly frustrated by arrogance and bad legal judgment of goading the [Dover] school district to keep a policy that the main organization supporting intelligent design was opposed to,” says John West, the associate director of the Discovery Institute’s Center for Science and Culture.

The Thomas More Center acted “in the face of opposition from the group that actually represents most of the scientists who work on intelligent design.’’

. . .
In fact, these two prominent supporters of intelligent design couldn’t be much more at odds.
Mr. Thompson says the Discovery Institute bailed out on the Dover Board of Education when three of its experts refused to testify at the last minute, after the deadline for recruiting witnesses had passed.

But Mr. West says the whole thing was the More Center’s fault. Mr. Thompson wouldn’t let Discovery Institute fellows have separate legal representation.

The Discovery Institute has never advocated the teaching of intelligent design, and told the Dover board to drop its policy, Mr. West says. It participated in the trial only reluctantly.
“ We were in a bind,” Mr. West says. “Our ideals were on trial even though it was a policy we didn’t support.”

Richard Thompson countercharges that the Discovery Institute people are essentially wimps, people who just talk a tough game but don't put their beliefs on the line when it counts:

Mr. Thompson says the Discovery Institute’s strategy is to dodge a fight as soon as one appears imminent.

“The moment there’s a conflict they will back away…they come up with some sort of compromise. ”But in Dover “ they got some school board members that didn’t want compromise.”

This intramural battle between two groups supposedly on the same pro-IDC side did not augur well for the trial that was scheduled when some Dover parents led by Tammy Kitzmiller challenged the constitutionality of the school board's decision.

The stage was now set for the courtroom confrontation.

How IDC Lost in the Dover Case

The stage was thus set in Dover, PA for what turned out to be an unequal contest in the courtroom of US District Judge John E. Jones III. Matthew Chapman, a great-great-grandson of Charles Darwin, attended the trial and provides an amusing description of its proceedings, the personalities involved, and of the events in the town of Dover leading up to the trial. In his account God or Gorilla: A Darwin Descendant at the Dover Monkey Trial in the February 2006 issue of Harper's Magazine, he describes how the plaintiffs team of lawyers, headed by the ACLU seemed to have the resources and materials at their fingertips while the Thomas More lawyers looked inadequately prepared and with few resources, even having to borrow the expert audio-visual services available to the plaintiffs.

Describing the plaintiffs' (i.e., the people challenging the school board's IDC policy) legal team, Chapman writes: "Here then was a team of highly skilled professionals operating in an atmosphere of frictionless amiability. Here was a collegiate machine," while looking at the defense team "one was reminded more of a dysfunctional family with a frequently absent father." (The 'father' in this case was Thomas More head Richard Thompson, who would be there for a few days and then disappear for a week.)

But more serious than the imbalance in legal resources was the fact that by introducing IDC ideas explicitly into their policy, the Dover school board exposed them to close scrutiny and, under cross-examination, those ideas did not fare well. As I have written earlier one of the expert witnesses who did appear on behalf of the defense was biochemist Michael Behe, probably the main scientist of the IDC movement, author of Darwin's Black Box and creator of the five cases of 'irreducible complexity' on which the credibility of IDC hinges. Behe was cross-examined in a way that he never encounters when he speaks with IDC-friendly audiences and journalists and TV talk show hosts. As a result, he was forced into several damaging admissions, to the extent of even admitting that changing the definition of science to include IDC would also result in astrology being considered science. The judge repeatedly quoted his testimony as reasons evidence why he ruled against the defendants, which is somewhat ominous for IDC ideas if they should venture into the courtroom again

As almost everyone knows by now, the judge ruled overwhelmingly in favor of the plaintiffs, arguing that the Dover action was unconstitutional. He was unsparing in his criticism of the school board, saying "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 students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources." (p. 138)

He was also clearly angered by the outright lying by some of the Board members in their testimony, saying "The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy." (p. 137)

But what was most damaging to the IDC case was the fact that the judge had taken the time to analyze closely the important question of whether IDC was science or religion, a question that he could have avoided if he wished, since the unconstitutionality of the Board's actions did not depend on it. And his ruling that IDC was not science may end up being the most significant part of the verdict for the Discovery Institute's long-term goal of slowly bringing it into the schools. He said (p. 64):

After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID’s negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research.

Equally damaging (in a practical sense) was the judge's decision that the Dover school board should pay for the court costs of the plaintiffs, a pretty large bill for a small school board and one that will have a chilling effect on the aspirations of other school boards to try similar actions.

Although a single verdict by a US District Court judge (unlike rulings by appeals courts or the US Supreme Court) carries with it no formal legal weight outside his district, a comprehensive and broad verdict like this tends to be very influential if a similar case should occur elsewhere. To see how this happens, one can go back to the 1982 ruling in McLean v. Arkansas Board of Education, where the judge in that case ruled that legislating equal time for creationism in biology class was unconstitutional. This was again a US District Court ruling but one which was very detailed and comprehensive.

That ruling by Judge William Overton was influential in creating a similar result in neighboring Louisiana, and it was the latter case (Edwards v. Aguilard) that resulted in the US Supreme Court ruling against creationism in 1987, adopting much of the reasoning used by Judge Overton in McLean. In fact, the McLean ruling was influential even in the Dover case.

There is no doubt that the Dover verdict was slam-dunk victory for the plaintiffs and a devastating defeat for the IDC side, much worse than they had feared. On September 30, 2005, before the trial, key IDC theorist William Dembski had made the following prediction on his blog:

As I see it, there are three possible outcomes:

1. The Dover policy, in which students are informed that the ID textbook Of Pandas and People is in their library, is upheld.

2. The Dover policy is overturned but the scientific status of ID is left unchallenged.

3. The Dover policy is not only overturned but ID is ruled as nonscientific.

For what it’s worth, my subjective probabilities are that outcome 1. has about a 20% probability, outcome 2. has about an 70% probability, and outcome 3. has less than a 10% probability.

While Dembski was pessimistic about the outcome of the trial being favorable for their side (outcome 1), he still expected to salvage the notion that IDC could be science. The result being overwhelmingly outcome 3 may have unnerved Dembski so much that just six days after the Dover verdict, he announced that he was suspending his blog indefinitely. Since then, "his" blog has since reopened under new management, seemingly run by his more frequent commenters

Judge Jones' verdict, which reads like a 139-page monograph on the history of attempts to overthrow evolutionary ideas in science classes and replace them with religious ones, will and should be read by everyone interested in church-state separation issues. I can imagine other judges are likely to read it for guidance if they should have to rule on similar cases.

The verdict immediately set off a series of actions in other parts of the country, as its implications were evaluated.

A Dover Domino Falls in California

The first domino to fall as a result of the Dover verdict was in California where a teacher had decided to create a new optional philosophy class that would promote IDC ideas. This decision was interesting because the people behind it had seemed to draw the lesson from the Dover ruling that while it was problematic to teach IDC ideas in science classes, that it was acceptable to teach it in philosophy courses. As the LA Times reports:

At a special meeting of the El Tejon Unified School District on Jan. 1 [2006], at which the board approved the new course, "Philosophy of Design," school Supt. John W. Wight said that he had consulted the school district's attorneys and that they "had told him that as long as the course was called 'philosophy,' " it could pass legal muster, according to the lawsuit.

The course description is revealing:

Philosophy of Intelligent Design: "This class will take a close look at evolution as a theory and will discuss the scientific, biological, and Biblical aspects that suggest why Darwin's philosophy is not rock solid. This class will discuss Intelligent Design as an alternative response to evolution. Topics that will be covered are the age of the earth, a world wide flood, dinosaurs, pre-human fossils, dating methods, DNA, radioisotopes, and geological evidence. Physical and chemical evidence will be presented suggesting the earth is thousands of years old, not billions. The class will include lecture discussions, guest speakers, and videos. The class grade will be based on a position paper in which students will support or refute the theory of evolution."

The biography of the teacher who proposed and would teach the course says that she has a B. A. Degree in Physical Education, Social Science, with emphasis in Sociology and Special Education. There is no mention of science or philosophy expertise. The reading list and guest speakers seemed to be weighted heavily towards young-Earth creationist ideas.

Some parents objected to this course and immediately filed suit to stop it. Once again, the Discovery Institute had a mixed response, reflecting the confusion in the IDC camp after the Dover verdict. On the one hand they cried foul, saying that those opposed to IDC were hypocritically moving the goals posts after their Dover victory:

Clearly, American’s United for Separation of Students from Science is singing a different tune now than they did last year during the Dover trial.

Then they wanted to outlaw mentioning intelligent design in science classes. Now they want to ban it from all classes.

Then, they said intelligent design was an okay topic for philosophy classes. Now, they claim intelligent design is not suited for any classes.

Then, the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, was saying specifically about intelligent design that: "when it comes to matters of religion and philosophy, they can be discussed objectively in public schools, but not in biology class."

On the other hand, about the same time, the Discovery Institute itself made a presentation to the El Tejon school board urging that the course be dropped. They were obviously concerned that this school policy, like that of the Dover board, would be another clumsy attempt that would set back their careful strategy even further because this course mixed young earth creationism with IDC. As their attorney Casey Luskin said (echoing Johnny Cash's Folsom Prison Blues):

There is a legal train coming at you and we can see it coming down the tracks. Unfortunately this course was not formulated properly in the beginning, and students were told it would promote young earth creationism as fact. Thus, the only remedy at this point to avoid creating a dangerous legal precedent is to simply cancel the course.
. . .
[I]f you do not cancel this course, and if you let this lawsuit go forward, you are going to lose and there will be a dangerous legal precedent set which could threaten the teaching of intelligent design on the national level. Such a decision would also threaten the scientific research of many scientists who support intelligent design.

Because of the young earth creationist history of this course, this course is not legally defensible and it should be cancelled.

The 'legal train' Luskin spoke of that bearing down on them was presumably powered by the locomotive of Judge Jones' Dover decision, showing how seriously the people at the Discovery Institute viewed that result. On January 17, 2006, less than three weeks after the course was authorized, it was cancelled.

Luskin was concerned that by co-mingling young Earth creationism (which the Supreme Court had already ruled in 1987 was a religious belief) with IDC, the courts would again rule against the school board and that IDC would be dragged down along with creationism. Since the whole Discovery Institute strategy had been to carefully formulate IDC so as cleanse themselves of any creationist taint, they must have been tearing their hair out at the people of Dover and El Tejon, who were clumsily mixing the two up again. With friends like these, they definitely don't need any enemies.

This is always the problem with such stealth strategies. They depend for success on the followers being given nods and winks that tell them not to take the words at face value, that they are merely codes. This works as long as you dealing with those already in the know, who understand how and why the game is being played this way, and who are willing to trust what you say. But there has always been some tension between the smooth-talking sophisticated IDC strategists and their more plain-spoken base, who were getting increasingly impatient with this careful avoidance of any mention of god. From the latter groups' point of view, the US is a Christian country, god belongs everywhere, and if IDC is meant to get god back in the schools, then why not come right out and say so? What is the point of all this tap-dancing around the mention of god?

The El Tejon school board clearly thought they had a winning strategy by explicitly labeling theirs as a philosophy course. Furthermore it was optional. So on the surface, it seemed as if there should be no problem with it. After all, even the most die-hard evolution supporter and anti-IDC militant would concede that religious ideas might be perfectly appropriate for a philosophy, history, or social studies course. It would be hard for any teacher of those subjects to avoid discussing the influence of religion in the social and political histories of nations, and many do so all the time without any legal challenge.

The only people who might express some concern about the El Tejon plan might be philosophy and social studies teachers who might be worried that their curricula are being converted into dumping grounds for the pet causes of religious activists. But while they might find that annoying, that would not be a basis for rejection on legal or constitutional grounds.

So despite the links with creationism, why was the Discovery Institute so nervous about this course going forward and sought to have it cancelled? To understand this, one has to look at a long series of precedents set by the US Supreme Court on the question of the separation of church and state, especially as it pertains to education. Judge Jones in his Dover ruling traced the history of these rulings.

Religion in Schools

Contrary to what Bill O'Reilly and other hysterical people allege, there is no 'war on Christianity' or 'war on Christians' in the US. To say so is to just be silly and to disqualify yourself from being taken seriously. Nor is there is a blanket ban on teaching about god and religion in public schools. The latter assertion is based on a common misunderstanding about the US constitution and it is worth exploring. The relevant question is how you teach about god and religion and for what purposes. (Usual disclaimer whenever I am discussing the implications of rulings by the courts: I am not a lawyer but would love to play one on TV.)

The issue of whether religious beliefs can be taught in public schools is governed by the establishment clause of the First Amendment which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

A key interpretation of this clause was provided in 1947 by Justice Hugo Black in the case of Everson v. Board of Education (330 U.S. 1, 15-16 (1947) where he wrote: "The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another."

This was further clarified in Epperson vs. Arkansas 393 US 97 (1968) which said that the "First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion." (Kitzmiller, p. 91)

This was further clarified in 1971 in the case Lemon v. Kurtzman (403 U.S. 602, 612-613 (1971)) which said that to pass constitutional muster, a law must pass all three of the following tests:

First, the statute must have a secular legislative purpose;

Second, its principal or primary effect must be one that neither advances nor inhibits religion;

Finally, the statute must not foster "an excessive government entanglement with religion."

In the Dover case, both sides agreed that only the first two prongs were relevant to that issue. The first prong of the Lemon test explains why IDC proponents are so anxious to have their beliefs accepted as part of science. If that can be achieved, then they can meet the first prong, since the teaching of science in a science class clearly has a secular purpose. Hence Judge Jones' conclusion that IDC is not science must be seen as a serious blow to their ambitions.

Judge Jones also invoked another US Supreme Court precedent (County of Allegheny v. ACLU (1989)) which said that "School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents 'that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'"

This is another reason why a secular public sphere is to be preferred. If you have a public sphere (in schools or elsewhere) in which one particular religious view is favored or endorsed, then it sends a message that others who are not of this particular religious persuasion are not full members. The Allegheny case resulted in the following 'endorsement test' that could be applied to any laws. It says that there is a "prohibition against government endorsement of religion" and that it "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." (Kitzmiller, p. 15)

As Judge Jones pointed out (p. 46) all these precedents imply that "[T]he Establishment Clause forbids not just the explicit teaching of religion, but any governmental action that endorses or has the primary purpose or effect of advancing religion."

There would be no problem under these guidelines (as I read the law) about a philosophy course that examined, in a neutral way, the religious beliefs of people. There would be no problem in discussing in a history or social studies course the role that Christianity played in the American political process or the role that Islam played in the development of the middle east. In fact, it would be hard to keep religion out and teach those topics in a meaningful way.

A problem only arises if you use a course to promote religion in general or a specific religious point of view. Now we see more clearly why the El Tejon policies were problematic. It is not how a course is labeled (whether science or philosophy) that is at issue, it is how the course is taught. The El Tejon course was explicitly advocating a particular religious point of view, that of young Earth creationism. And the people at the Discovery Institute (rightly I think) saw that this would be easily ruled unconstitutional. And since the course dragged in IDC ideas as well, a negative ruling on this case would be interpreted as meaning that IDC ideas should not be allowed even in philosophy classes, which would be a huge public relations setback for them.

This is why they must have breathed a huge sigh of relief when the El Tejon school board decided to cancel the course.

The Ohio Domino Falls

The domino effect of the Dover verdict was seen soon after in Ohio where on February 14, 2006 the Ohio State Board of Education reversed itself and threw out the benchmarks in the state's science standards that called for the critical analysis of evolution and the lessons plans that had been based on them. This happened even though the Ohio policy did not explicitly mention intelligent design. However, the move was clearly influenced by the ripples from the Dover trial and it is instructive to see why.

What Ohio had done in 2002 was to include a benchmark in its 9th grade biology standards in the section that dealt with biological evolution that said "Describe how scientists continue to investigate and critically analyze aspects of evolutionary theory." They added additional language that said (in parentheses) "The intent of this benchmark does not mandate the teaching or testing of intelligent design."

The pro-IDC OBE members also inserted people into the lesson plan writing team who drafted a lesson plan called Critical Analysis of Evolution that essentially recycled IDC ideas, again without explicitly mentioning intelligent design.

But on February 14, 2006, the Ohio Board of Education voted 11-4 to reverse itself and eliminate both the benchmark and its associated lesson plan. Why did they do so since, as some pro-IDC people on the Board said, they should have nothing to fear from the Dover decision since they had carefully avoided requiring the teaching of IDC?

Again, Judge Jones' ruling indicates why. In his ruling, he said that what determines whether a law passes constitutional muster is how an informed observer would interpret the law. He said (Kitzmiller, p. 15):

The test consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy's language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose.

In the case of challenges to evolutionary theory, he looked at precedent and especially (p. 48) at:

a factor that weighed heavily in the Supreme Court's decision to strike down the balanced-treatment law in Edwards, specifically that "[o]ut of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects."

He went on (p. 57):

In singling out the one scientific theory that has historically been opposed by certain religious sects, the Board sent the message that it "believes there is some problem peculiar to evolution," and "[i]n light of the historical opposition to evolution by Christian fundamentalists and creationists[,]…the informed, reasonable observer would infer the School Board's problem with evolution to be that evolution does not acknowledge a creator."

Notice that the standard used for judging is what an 'informed, reasonable observer' would infer from the action. IDC advocates tend to implement their strategy by carefully choosing words and sentences so that it meets the letter of the law and thus hope it will pass constitutional scrutiny. But what Judge Jones says is that it is not merely how the law is worded but also how a particular kind of observer, who is assumed to be much more knowledgeable about the issues than your average person in the street, would interpret the intent of the law:

The test consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy's language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose (emphasis added).

And this is the most damaging part of the verdict to the ID case. Their strategy has always been to single out evolutionary theory in science for special scrutiny in order to undermine its credibility. They have never called for 'teaching the controversy' in all the other areas of science. Judge Jones said that since an 'informed, reasonable observer' would know that Christians have had long-standing objections to evolutionary theory on religious grounds, singling it out for special treatment is tantamount to endorsing a religious viewpoint.

In a further telling statement that has direct implications for the Discovery Institute's 'teach the controversy' strategy, he said (p. 89):

ID's backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM [Intelligent Design Movement] is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.

There is no way to see the Dover ruling as anything but a devastating blow to the whole stealth strategy promoted by the Discovery Institute. After all, their strategy had precisely been to single out evolutionary theory for special treatment. They have resolutely opposed any attempt to call for 'critical analysis' and 'teaching the controversy' in all areas of science.

What will they do in response? It is hard to say. My guess is that they will put all their efforts into supporting the policy adopted by the Kansas school board, which was done according to their preferences, unlike the ham-handed efforts of the people of Dover, El Tejon, and Kirk Cameron's friend and the banana. (I had not known who Kirk Cameron was before this. I have been informed that he used to be a TV sitcom actor before he saw the light.)

The next domino is the science standards adopted by Kansas's Board of Education. I have not looked too closely at what the school board decided there, so will defer commenting on it until I do so. But it is likely to end up in the courts, too.

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