Articles and Essays

Dover Decision
by Kevin L. Anderson, Ph.D.

Reprinted with permission from the Creation Research Society Newsletter,
Creation Matters (11:1), January / February 2006

In his recent ruling, the Honorable John E.  Jones III ruled that the teaching of Intelligent Design (ID) in public schools is unconstitutional because it is religion, not science (Kitzmiller v.  Dover School District; Document 342. Dec. 20, 2005).  As part of his ruling he declared that the “overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory” (p. 43).  It seems that one of the assumptions of ID’s “wedge” strategy (Johnson, 2000) is an expectation of a reasonable level of objectivity in the US court system.  Such is not to be found in this particular court, and may represent one of the weaknesses of the “wedge” strategy.
    Judge Jones is clearly an ardent Darwinist, and he eagerly accepted virtually all of the Plaintiff’s pro-evolutionary arguments while dismissing most of the Defendant’s claims with merely a wave-of-the-hand (or wave-of-the-pen, in this case).  Among the judge’s arguments, several are rather striking and relevant to creationists.

Unconstitutional motives
In finding the Dover School Board’s actions unconstitutional, Judge Jones focused on what he perceived were the motives of some of the board members.  He determined that some board members had a link with biblical “fundamentalism” (a position he seems to view with a thinly veiled contempt).
    Since, he concluded, the main objective of “fundamentalists” is to introduce the book of Genesis into the science classroom, this must be the true agenda of the Defendants as well.  So, regardless of the actual board’s decision and policies, the very fact that some board members supported biblical “creationism” apparently makes any action on their part unconstitutional – i.e., regardless of what they did, Judge Jones did not like their motives (or at least his perception of their motives).

Contrived dualism
Creationists have often suggested that the question of life’s origin has only two possible answers.  Life was either created or it was not created.  Judge Jones considers this a “contrived dualism[,] which has no scientific factual basis or legitimate educational purpose” (p. 42).  Interestingly, he makes this accusation without attempting to offer an example of what a third or fourth possible answer might be.
    He also refers to this “dualism” as an extension of the Institute for Creation Research’s (ICR) fundamentalist view “that one must either except the literal interpretation of Genesis or else believe in the godless system of evolution” (p. 42).
    While ICR clearly views the best creation model as one that fits with the literal Genesis account (as does the Creation Research Society), I am not aware of any information in their literature that suggests that the judge has correctly expressed their official scientific position.  Rather, Judge Jones once again appears to fully accept, without qualification, the Plaintiffs’ often misleading claims.  In fact, it would seem he has created his own “contrived dualism” by claiming that ICR (i.e., creationists) suggests that anyone not accepting a specific understanding of the Genesis account is a godless evolutionist.

Science defined
As another part of his argument that ID is merely a religious viewpoint (i.e., an extension of an even greater intellectual travesty called “creationism”), Judge Jones seeks to strictly define science.  Not surprisingly he offers a definition that satisfies the naturalists’ requirement for confining science to “methodological naturalism” (p. 65) stating that:

Anything that can be observed or measured is amenable to scientific investigation.  Explanations that cannot be based upon empirical evidence are not part of science. (p. 66)
    As some have already begun to realize, though, this strict definition of science also creates some nasty difficulties for evolutionary theory.  For example, it has never been empirically shown that mutations are able to generate sufficient biological change to transform a “water breathing” fish to an “air breathing” amphibian.  Rather, this is merely an inference based upon the evolutionary claim of common descent.  Neither has it ever been empirically demonstrated that stochastic chemical reactions can synthesize optically pure amino acids or nucleic acids (a requirement for life).  Biochemical evolution simply infers that this must have happened in order for life to have originally formed.
    Such inferences clearly fall outside the strict definition offered by Judge Jones, and thus become a form of “metaphysical naturalism” (as opposed to “metaphysical supernaturalism”).  Yet, according to Jones, the metaphysical, whether natural or supernatural, is outside of science, and thus cannot be offered as science in the public classroom.
    Among the other arguments supporting his determination that ID is religion, not science, I find one especially striking.  He states that an Intelligent Design network newsletter:
... all but admits that ID is religious by quoting Anthony Flew, described as a “world famous atheist who now believes in intelligent design,” as follows: “My whole life has been guided by the principle of Plato’s Socrates: Follow the evidence where it leads.”  (p. 54)
    Apparently, according to Judge Jones, “following the evidence where it leads” is now a religious position.  One might be tempted to ask the judge if this means his new “constitutionally acceptable” version of science is to NOT follow the evidence where it leads?
    During the trial, Dr.  Kenneth Miller, a key witness for the Plaintiff, testified that attributing unsolved biological problems to the acts of a supernatural agent is a “science stopper” (p. 66).  The assertion that “God did it,” he alleges, becomes the cue to stop trying to understand any underlying biological mechanism, again illustrating how ID is not science.  Miller’s claim draws some credibility when creationists use oversimplified arguments of how certain unanswered questions in biology challenge or even invalidate evolution.
    Nonetheless, evolutionists should not be so quick (and arrogant) to pronounce evolution as the ultimate explanation for biological origin and diversity when there is so much of biology that evolution cannot account for or explain.  Gaps in scientific knowledge should, however, not be viewed as strong evidence either for creation or against evolution.  The true difficulties facing evolution are not what we do not know about biology, but rather what we do know.

Religious nature of evolution
For years many creationists have maintained that evolution is just as “religious” as creation, if not more so.  Richard Dawkins’ declaration that “Darwin made it possible to be an intellectually fulfilled atheist” (Dawkins, 1986, p. 6) establishes a strong religious link to evolution.  Science philosopher Lloyd Eby tends to echo the creationists’ sentiment:

... Darwinian and neo-Darwinian evolution frequently becomes a semi-religious view because it is given as a support for the view that no supernatural reality exists, and because it is offered as an answer to the question of “ultimate things.”  Such answers are, by their nature, at least semi-religious if not fully so (Eby, 2006).
Judge Jones also declares that “science does not consider issues of ‘meaning’ and ‘purpose’ in the world” (p. 65).  But then, we must ask if books by noted evolutionists, such as The Selfish Gene, The Blind Watchmaker, Adam’s Curse, The Immense Journey, Ever Since Darwin, and Mystery Dance, all of which make bold evolutionary claims about meaning and purpose (or lack thereof), should also be banned from the science classroom?  We can only hope.
    He further implies that because ID “does not exclude the possibility of a supernatural designer,” but instead allows for “supernatural causation of the natural world” (p. 67) and “cannot uncouple itself from its creationist, and thus religious, antecedents” (p. 136), it automatically has a religious basis.  Does this mean that evolution must then exclude the possibility of a supernatural designer to remain science; i.e., that evolution must now officially be regarded as atheistic?
    Clearly the “official” scientific version of evolution is (and has been) atheistic, but there has always been the “unofficial” assurance by certain proponents that evolution and Christianity do not conflict.  Even Plaintiff witness Dr.  Kenneth Miller has claimed to be devout Catholic who recognizes the existence of a creator God (Miller, 1999).  Does this now disqualify evolution as science?  Can evolution allow for a supernatural designer but ID cannot?  Apparently so.  In fact, Judge Jones strongly challenged that the contention that “evolutionary theory is antithetical to religion in general” was “utterly false” (p. 136).
    The judge may counter my argument by suggesting that evolution theory allows for, but does not require, a supernatural agent or event; i.e., evolution can allow both theistic and an atheistic position.  Thus, it supposedly religiously and scientifically “neutral.”  Yet, if evolution is a complete, fully-functional scientific theory without a supernatural agent or event, then any compatibility with a creator is purely contrived.  While this contrivance may help reassure those trying to mix Christianity and evolution, it serves no scientific or biblical purpose.  A creator has no need of evolution.  Evolution has no need of a creator.
    On the other hand, if evolution requires the supernatural, then, according to Judge Jones, it cannot be scientific.  Either way, the justification for what has been called “theistic evolution” (a “Christianized” version of evolution) is not viable.
    In fact, by Judge Jones’ standards, to propose a “theistic” version of evolution is unconstitutional and unscientific.  Therefore, despite Judge Jones’ admonition to the contrary, his ruling requires that evolution must officially be recognized as atheistic if it is to be taught in the science classroom.  There is no room for a creator in the evolution paradigm.  It is noteworthy that, despite claiming to acknowledge a creator God, Dr. Miller not only seems very comfortable with this atheistic version of evolution, he even insists on it.  It seems his creator is in fact irrelevant.

The tiresome “catch 22”
Judge Jones also indulges in the inevitable “catch 22” that evolutionists have succeeded in creating.  At various places in his ruling he refers to the opinions of scientific organizations that reject ID.  Is scientific truth now a matter of popular vote or appeal to authority?  Many currently-accepted concepts of science were not particularly popular or widely accepted when they were first proposed.  Did this make them unscientific?  Many formerly-popular science paradigms are now known to have been wrong.  Popular opinion and so-called scientific authorities can be wrong, especially when dealing with issues that have far-reaching social consequences.  Objectivity is often lost, even with scientists.
    In fact, a vast number of scientists are evolutionists by default, not by conviction.  Many have never seriously considered alternatives to evolution.  They have merely accepted what they were taught, and they assume evolution’s popularity results from its scientific veracity.  Pressures within the scientific community also silence many from any public comment or criticism of evolution.  Thus, evolution’s overwhelming popularity tends to be more a matter of appearance than actual substance. Pushing this “catch 22” even further, Judge Jones claims that the lack of ID articles published in standard, peer-reviewed scientific journals further shows that ID is not science.  As the current dominant paradigm in science (not just biology, but virtually every branch of science), evolution has succeeded in closing the door to all competing ideas.  This exclusiveness is used to prevent publication of any articles that promote (or even hint at) alternatives to evolution.  The recent uproar over Dr.  Stephen Meyer’s (2004) pro-ID article in Proceedings of the Biological Society of Washington, a somewhat obscure science journal, is a clear demonstration of this exclusivity.  Few critical comments were directed at the scientific content of the article.  The simple fact that the article was even published was sufficient to call for the resignation of the “guilty” editor (who approved the publication after following the journal’s peer-review process) and to issue an official apology from the journal’s editorial board.
    Subsequently, many journal editors have reaffirmed their commitment to keeping any creation or ID material from being published (usually saying they would not even submit the manuscript for review).  Thus, it is hardly appropriate to say on one hand that ID (or creation) is not science because it does not appear in the scientific literature when, on the other hand, the manuscript is not even allowed to be considered for publication.

Social discord
Judge Jones also refers to the trial testimony of several parents, summarizing their testimony as:

Plaintiffs provided testimony as to the harm caused by the Board’s ID Policy on their children, families, and themselves in consistent, but personal ways [and] additionally testified that their children confront challenges to their religious beliefs at school because of the Board’s actions, and the Board’s actions have caused conflict within the family unit, and that there is discord in the community.  (p. 128-129)
    Many Christian parents may be tempted to respond that policies and actions of certain public schools (such as teaching evolution) caused harm, as well, to their children and families in “consistent, but personal ways” and caused conflict within the family unit.  It is interesting that public school policies that impact and challenge the religious beliefs and cause family and community conflict within conservative Christian family units appear to be less important.
    One parent further testified that:
People are afraid to talk to people for fear, and that’s happened to me.  They’re afraid to talk to me because I’m on the wrong side of the fence.  (p. 129)
Judge Jones further quotes the United States Supreme Court as stating that there is not to be any:
... compelling [of] nonadherents to support the practices or proselytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community.  (p. 133)
Creationists in academic environments may be justified in thinking that these two statements describe exactly what they experience every day.

Church and state
And finally, Judge Jones takes an extremely naive approach to the First Amendment, claiming to use the principle of “government neutrality between religion and religion, and between religion and nonreligion” (p. 91).  But, this neutral ground is merely an illusion.  Government policies that exclude any references to God or the supernatural, by default favor a non-supernatural position.  As I have given several examples in this commentary, many of the claims and arguments he uses could apply equally well (if not better) to the teaching of evolution.  Judge Jones has merely chosen a position, and attempted to justify it.  However, he deceives himself if he thinks his position represents a neutral one.
    One board member was quoted by Judge Jones as saying “nowhere in the Constitution does it call for a separation of church and state” (p. 105).  Rather than accepting this as one possible Constitutional interpretation, the judge merely dismissed this as an “outwardly religious statement” (p. 104).  Apparently, any disagreement with Judge Jones’ opinion of the Constitution (esp. the First Amendment) is based solely on one’s personal religious motives.
    In fact, he further declares that “the separation of church and state [is] mandated by the Establishment Clause of the First Amendment” (p. 138).  Interestingly, the 6th Circuit Court of Appeals does not agree with either Judge Jones’ attitude or Constitutional interpretation.  In a 3-0 opinion, they state that the “extra-constitutional construct” (emphasis added) of “the separation of church and state” has “grown tiresome ... The First Amendment does not demand a wall of separation between church and state” (ACLU v.  Mercer County, KY, 12/20/2005, p. 13).

Final thoughts
The ruling by Judge Jones contains many inconsistencies and false assumptions.  Much will likely be written in the next few months/years about his ruling, both supportive and critical.  For creationists, however, the ruling gives us an insight into the strategies of our opponents and the legal perceptions with which we will have to contend in future actions of school boards and other groups.  Also, many of the actions by the school board and by individuals on the school board may not have represented the best strategy, and have tended to involve tactics that probably alienated as many people as they attracted.  So, while the ruling is disappointing in many respects, several of the arguments raised by Judge Jones can also serve as future challenges to evolution’s teaching “monopoly.”

Dawkins, R.  1986.  The Blind Watchmaker.  W.W. Norton and Co., New York, NY.

Eby, L.  2006.  What is science? Part II: Pennsylvania’s intelligent design case.  World Peace Herald. (

Johnson, P.  2000.  The Wedge of Truth: Splitting the Foundations of Naturalism.  InterVarsity Press, Downers Grove, IL.  (The “wedge” strategy is simply an attempt to split “naturalism” from science by showing that naturalism is a process of rationalization, not reason.)

Meyer, S.  2004.  The origin of biological information and the higher taxonomic categories.  Proceedings of the Biological Society of Washington 117(2):213-239.

Miller, K.  1999.  Finding Darwin’s God: A Scientist’s Search for Common Ground Between God and Evolution.  Harper Collins, New York, NY.

About the Author
Dr. Kevin L. Anderson has a Ph.D.  in microbiology with extensive knowledge in microbiology, biochemistry, and molecular genetics.  He is director of the Creation Research Society’s Van Andel Creation Research Center and editor-in-chief of the CRS Quarterly.