Judging Intelligent Design: Should the Courts Decide What Counts as Science or Religion?
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).
Our Fall semester opened with a lunch colloquium on September 27 with Jay Wexler, Associate Professor at the Boston University School of Law. An expert on constitutional issues involving religion and education, Wexler spoke about the recent controversy over teaching the theory of “intelligent design” as part of a science curriculum. His presentation, “Judging Intelligent Design: Should the Courts Decide What Counts as Science or Religion?” drew an interdisciplinary audience of physical and social scientists, theologians, and educators.
In a federal court case last year that many compared to the 1925 Scopes Monkey Trial, a federal judge barred a Pennsylvania public school district from teaching the theory of intelligent design (ID) in biology class, ruling that ID is a religious (not scientific) theory and therefore its teaching represented an unconstitutional establishment of religion in public schools. Wexler argued that the court’s 139-page opinion was a comprehensive and complete victory for ID opponents, but that it nevertheless presents a serious philosophical and jurisprudential problem: it puts judges in the position of definitively ruling what is—or is not—both science and religion. Legal precedent did not require the court to define “science” in order to declare ID a violation of the establishment clause; this judicial overreaching was thus both unnecessary (since the definition of non-legal terms are usually outside the bounds of law) and unfortunate (since it leaves these definitions open to future manipulation by judges and lawyers who might not be so conscientious). Finally, said Wexler, the decision also implied that religion and science are somehow mutually exclusive—something many scientists and theologians alike would contest.
A robust conversation brought many questions to the table about the relationship between science and religion, and the challenges of teaching one or both in public schools. As one guest asked: if science is a process, not a conclusion, then wouldn’t any subject that is scientifically examined—for example, the effects of prayer on health—be legitimate to teach in schools? No consensus was reached on an answer, of course, but the question spurred much thoughtful discussion.
- Jay Wexler, “Kitzmiller and the ‘Is it Science?’ Question,” First Amendment Law Review 5:90 (2006); with a response in the same issue by Richard Katzkee.
- Jay Wexler, “Intelligent Design and the First Amendment: A Response,” 84 Washington University Law Review 63 (2006).
- Jay Wexler, “Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools,” 56 Vanderbilt Law Review 751 (2003).
- Kristi Bowman, Seeing Government Purpose Through the Objective Observer's Eyes: The Evolution-Intelligent Design Debates, 29 Harvard Journal of Law & Public Policy 417 (2006).
- Francis Beckwith, Law, Darwinism, and Public Education: The Establishment Clause and the Challenge of Intelligent Design (2003).
- Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005)