Trial and Error

is the Washington correspondent for Seed and the author of The Republican War on Science. Harrisburg, PennsylvaniaJudge John E. Jones III's courtroom has been pretty packed for the first week of Kitzmiller v. Dover Area School District--especially the jury box. That's where the judge has placed many members of the media, allowing them a privileged view of both sides in the lawsuit that pits proponents of "intelligent design" (ID) against defenders of evolution. Cameramen, meanwhile, lurk outside the federal courthouse to ensnare each witness at the end of testimony. It's a diverse group of journalists--local, national, international-- but they have nevertheless managed to spread one resounding message about the case: A new Scopes "monkey" trial is afoot here. Or, as the Chicago Tribune headline put it, "intelligent design duels darwin in `scopes ii.'" Allusions to the 1925 Scopes trial instantly conjure images of a grand clash between the legal titans William Jennings Bryan and Clarence Darrow (not to mention a smartass H.L. Mencken making fun of Tennessee's creationist bumpkins). So potent is this historical reference that today's journalists don't even need an actual evolution trial to report on before they avail themselves of Scopes analogies--mere hearings about evolution in Kansas earlier this year prompted the same kind of coverage. But, when it comes to the ongoing Kitzmiller case, Scopes references are not merely cliche; they actually distract from a far more revealing legal parallel: the 1981-1982 U.S. District Court "creation science" lawsuit McLean v. Arkansas, which was also nicknamed "Scopes II." The Kitzmiller trial pits a rural Pennsylvania school board--which introduced "intelligent design" into its biology curriculum last year--against eleven angry parents represented by the American Civil Liberties Union (aclu), Americans United for Separation of Church and State, and the law firm Pepper Hamilton. It's easily the most significant evolution trial in nearly two decades, and it will likely lead to a definitive ruling on the legality of teaching ID, a vague philosophical speculation about how biological complexity requires a supernatural, intelligent originator. In this, it is much like McLean, which represented the first important federal test of an anti-evolution tactic that sprung up during the 1970s: teaching evolution alongside creation science, a Genesis-inspired doctrine that usually embraces the view that the world is only a few thousand years old and that man was essentially created in his present form. Indeed, as Kitzmiller entered its second week, the arguments by both the pro- and anti-evolution camps bore a striking resemblance to those presented 20 years ago. That's good news for evolution, because if the parallels hold, Kitzmiller may end much as McLean did: with a strong victory for Darwinism. The aclu filed McLean in 1981 after Arkansas passed Act 590, which stated, "Public schools within this State shall give balanced treatment to creation- science and to evolution-science." As in Kitzmiller, the aclu's burden was to show that this policy violated the First Amendment's establishment clause because its primary purpose and effect was to advance religion. To do so, they had to show that, in contrast to evolution, creation science isn't science at all but theology in disguise. To that end, they called a variety of expert witnesses: Stephen Jay Gould testified to the firm acceptance of evolutionary theory in biology; Michael Ruse, a historian and philosopher of science then at the University of Guelph, explained that creation science simply does not fit the definition of what science, as a discipline, is; and the University of Chicago's Langdon Gilkey, an eminent Protestant theologian, explained that creation science is a clear reflection not of a scientific viewpoint but of religiosity. The defenders of evolution in Kitzmiller have followed an identical line of argument with a similar set of experts. Last week, Kenneth Miller, a cellular biologist at Brown University, was cast in the Gould role as a defender of the science of evolution. The University of Michigan's Robert Pennock argued the philosophy of science position--saying that science, by nature, follows a methodology to which ID doesn't adhere. And Georgetown theologian John Haught made the religious connection, arguing that ID amounts to little more than a "reformulation of an old theological argument for the existence of God." Likewise, the defenders of ID in Kitzmiller have echoed the arguments of the defenders of creation science in McLean. In his opening arguments last week, attorney Patrick Gillen asserted that ID was in fact scientific in nature, which is the same tack Arkansas lawyers in McLean took with respect to creation science. Most centrally, the defense in both cases claimed that their clients had a legitimate secular purpose: introducing students to alternative points of view. That ID's defenders are recycling the arguments made in McLean doesn't bode well for them. After William Overton, the judge in McLean, heard many of the same points, he decided to investigate the origins of Arkansas's "equal time" policy for creation science and found that its proponents had clear religious motivations. He even described them as being on a "religious crusade." Overton reviewed the legislative record behind the act and remarked upon the "lack of any legislative investigation, debate, or consultation with any educators or scientists." Overton ultimately found that he simply could not take claims that Act 590 had a secular educational purpose at face value. He ruled in McLean, "Since creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion." In Kitzmiller, Jones--a George W. Bush appointee presiding over what is easily the most high-profile case of his career--may have embarked upon a similar inquiry. In allowing the case to go to trial, he has given the aclu and its allies the opportunity to call forward not only expert witnesses but citizens from Dover, who attest that their school board had clear religious goals in passing its intelligent design policy. Indeed, one witness stated that some board members were originally interested in teaching outright creationism, and several corroborated newspaper reports that board member William Buckingham declared at a public meeting, during a discussion about teaching evolution, "2000 years ago, someone died on a cross. Can't someone stand up for him?" The aclu has also been able to highlight the irregularity of the process behind the passage of Dover's ID policy. Carol "Casey" Brown, a former board member who resigned from her post in protest when the policy was adopted, testified that scientists and educators were not consulted and that it was "unheard of" to change the science curriculum without involving all educational stakeholders. Ultimately Jones may regard such evidence differently than Overton did in McLean, but he has certainly listened to it carefully. And he has heard another argument that ultimately proved very forceful to Overton. In both trials, defenders of evolution have pointed out the flaws in the creationist assumption that, if evolution is incorrect, then by default creation science (or ID) must be the answer. In fact, many other scientific (and theological) possibilities would exist even if evolution were someday to be overturned. Or, as Overton put it, "The two-model approach of the creationists is simply a contrived dualism which has not [sic] scientific factual basis or legitimate educational purpose." In addition to repeating failed arguments, the anti-evolutionists are also making similar strategic decisions--many of which flopped the first time around. In McLean, the defense never called the most prominent defenders of creation science--Henry Morris and Duane Gish of the Institute for Creation Research (ICR)--and did not involve ICR attorney Wendell Bird in legal strategizing. The witnesses they called to the stand instead didn't do much to advance their case. Overton even professed himself puzzled as to why one witness--who opined that life on Earth sprang from material delivered on a comet and rejected the concept of a worldwide flood--was brought to testify. Similarly, in Kitzmiller, several leading intelligent design proponents affiliated with Seattle's Discovery Institute were originally scheduled to testify but will no longer do so. Even though it has been the nation's central proponent of intelligent design, Discovery has come to officially oppose the Dover policy in part because its leaders worry that the legal showdown unfolding could "hinder a fair and open discussion of the merits of ID." While a few Discovery Institute scholars will still serve as witnesses, the Dover board's legal defense has instead been handled by the Thomas More Law Center of Ann Arbor, Michigan. The Center doesn't seem to be off to a great start. Cross-examining Haught, for example, Thomas More's Richard Thompson digressed into the niceties of Catholic theological doctrine ("Do you believe in the Virgin birth of Christ?"), and one of his questions labeled the notion of common descent for humans and other organisms mere "conjecture"--a creationist-sounding slip of the sort that sophisticated proponents of intelligent design usually try to avoid. And, while Gillen's cross-examination of Pennock provided a nice run-through of the history of science (ranging from Copernicus to Newton to Einstein), it did nothing to undermine Pennock's definition of modern science as a search for natural causes. Defenders of evolution have long suspected that ID is nothing more than a strategic repackaging of creation science. The similarities between the cases made for creation science in McLean and ID in Kitzmiller suggest as much. But the Kitzmiller case promises to show a far deeper connection between the two doctrines than was previously realized. The most explosive charge aired so far has been the plantiffs' contention that the pro-ID textbook introduced in the Dover school district, Of Pandas and People, was originally designed as a creationist book. The aclu and co-plaintiffs allege that, after the Supreme Court reinforced Overton's ruling in 1987 with a 7-2 decision overturning a Louisiana law that also attempted to provide equal time for both evolution and creation science, the authors of Pandas, "[W]ith all the elegance of a word processor's algorithm, replaced references to creationism with the new label `intelligent design.'" Defenders of evolution have seized upon Pandas as the smoking gun that proves that, for all their talk of intelligent design, the creationists haven't really evolved. As Nick Matzke of the National Center for Science Education (which is advising the plaintiffs) wrote recently, "The fact that Pandas was originally a creationist book means that core figures of the ID movement--many of whom contributed to, or reviewed, drafts of Pandas--must have been deliberately hiding this skeleton in their closet for over 15 years." If proved in court, this last parallel between ID and creation science could ensure that Kitzmiller is remembered not so much as "Scopes III," but as "McLean II."

By chris mooney