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Boisi Center for Religion and American Public Life

Judging Intelligent Design

headshot of Jay Wexler

When Judge John E. Jones, III, a United States District Court judge appointed by President George W. Bush, ruled in Kitzmiller v. Dover Area School District that a Pennsylvania school board's intelligent design (ID) policy violated the First Amendment, supporters of teaching evolution were ecstatic. They had good reason to be. The opinion, which ran to 139 pages in length, was a comprehensive and complete victory for ID opponents. To be sure, the opinion is well-written, painstakingly documented, and mostly right. It is not, however, flawless. The opinion's main problem lies in the conclusion that most evolution supporters were particularly pleased with-namely, the judge's finding that ID is not science. The problem is not that ID is science. Maybe it is science, and maybe it isn't. The question is whether judges should be deciding in their written opinions that ID is or is not science-a question that sounds in philosophy of science-as a matter of law. On this question, the answer is "no," particularly when the overall question posed to the Court is whether teaching ID endorses religion, not whether it is or is not science. The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous to both science and freedom of religion. The judge's determination that ID endorses religion should have been sufficient to rule the policy unconstitutional.

Jay D. Wexler is Associate Professor of Law at the Boston University School of Law, where he teaches law and religion, administrative law, and environmental law. A former clerk for Supreme Court Justice Ruth Bader Ginsburg, he holds a B.A. from Harvard University, an M.A. from the University of Chicago Divinity School, and a J.D. from Stanford Law School. Among his many publications is "From the Classroom to the Courtroom: Intelligent Design and the Constitution," forthcoming in Not In Our Classrooms: Why Intelligent Design is Wrong for Our Schools (Beacon Press, 2006).

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