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By Alan Boyle Science editor
msnbc.com
updated 12/20/2005 5:57:33 PM ET 2005-12-20T22:57:33

Mainstream science groups hailed Tuesday's "intelligent-design" ruling as a slam-dunk for evolution. The judge in the case took extra pains to lay out a legal view of science vs. religion, saying he hoped it would head off the "obvious waste of judicial and other resources" on yet another court challenge.

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But even Darwin's staunchest defenders acknowledge that the legal battle over intelligent design, or ID, is shifting to new grounds. ID's proponents are already reshaping their arguments as a case of academic freedom vs. an overreaching "activist federal judge."

"Let no one think this debate is over. If there's any lesson to be learned, it's that this debate is never over," said Casey Luskin, an attorney at the Seattle-based Discovery Institute, which came in for criticism in the ruling from U.S. District Judge John E. Jones III.

Jones' ruling was a sweeping indictment of intelligent design, the notion that life on Earth was produced by an unnamed intelligent cause. The defenders of evolutionary theory gushed over the opinion during a celebratory news conference in Harrisburg, Pa.

"This decision is a major victory for science, and a major victory for science education," Eugenie Scott, executive director of the California-based National Center for Science Education, told reporters.

The judge could have issued a much narrower opinion, finding merely that the Dover Area School Board in Pennsylvania acted with a religious purpose when it required biology teachers to refer to intelligent design.

While that was indeed part of the ruling, much more of the 139-page opinion was devoted to the proposition that intelligent design was repackaged creationism rather than science. At times, Jones sounded more like a biology professor than a judge — for example, when he countered the view that some biological mechanisms were irreducibly complex by referring to "exaptation," the idea that a mechanism that was developed for one purpose could be adapted to another.

Throughout, he rejected the idea that intelligent design should be used to fill in blank spots in current evolutionary theory:

"To be sure, Darwin's theory of evolution is imperfect. However, the fact that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions."

‘Activist judge’ anticipates criticism
Jones' efforts rankled intelligent-design proponents at least as much as it pleased Darwin's defenders.

"In my opinion, this decision is unconstitutional," Luskin told MSNBC.com in a telephone interview. "The government has no business telling people how they should perceive evolution and religion."

A statement from John West, associate director of the Discovery Institute's Center for Science and Culture, struck a similar tone: "The Dover decision is an attempt by an activist federal judge to stop the spread of a scientific idea and even to prevent criticism of Darwinian evolution through government-imposed censorship rather than open debate, and it won't work."

The judge anticipated such criticism in his opinion:

"Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manisfestly not an activist court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the board to adopt an imprudent and ultimately unconstitutional policy. 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."

Richard Thompson of the Michigan-based Thomas More Law Center, the "public interest law firm" cited in Jones' opinion, made clear that he didn't consider the debate to be a waste.

"This should be done in the scientific community, debating it out. ... The debate is still going on. It's a new debate," Thompson said on MSNBC-TV.

Future frontiers for the ID debate
The judge's opinion isn't likely to set the terms of the debate in formal terms, due to two factors: It currently serves as judicial precedent only for the federal district of central Pennsylvania; and since Dover's pro-ID school board members were voted out last month, there's virtually no chance of appeal to a higher court.

But the attorneys for the families who brought the suit said school board members across the country would do well to read the opinion closely anyway. "It is our hope that today's decision will slow other school districts who might be thinking about moving forward" with ID-friendly policies, said Witold Walczak, legal director for the American Civil Liberties Union in Pennsylvania.

Eric Rothschild, another member of the plaintiffs' legal team, noted that through the years, the legal challenges to evolution education have been mounted in the name of creationism, then creation science, then intelligent design. "We expect another change in labels," he said, "whether it's 'sudden appearance,' or this 'teach the controversy' thing."

With the Dover case done, the political spotlight is now likely to shift to Georgia , where a suburban Atlanta school district is challenging a federal ban on textbook stickers questioning evolution; and Kansas , where the state school board recently endorsed ID-friendly curriculum standards.

But new legal frontiers could well open up in the months to come.

Luskin told MSNBC.com that the Discovery Institute would prefer to focus in the future on public-school teachers who want to bring up intelligent design, rather than on school districts who want to force intelligent design into the science curriculum. In fact, the institute has tried to distance itself from the Dover case for that reason.

"Discovery's policy has always been that we don't think intelligent design should be mandated. We've always opposed what the Dover school district did," Luskin said. "We do think intelligent design should be preserved as a constitutional right. I don't think this decision is going to stop teachers outside the Central District of Pennsylvania from teaching intelligent design."

In his written statement, West said "the institute strongly supports the freedom of teachers to discuss intelligent design in an objective manner on a voluntary basis."

Looking toward Michigan
One case has already attracted some attention: the case of Michigan's Gull Lake Community Schools, where two teachers are thinking about filing a lawsuit alleging that the district is interfering with their right to refer to intelligent design.

Past judicial opinions have made clear that there are limits to a teacher's free-speech rights in public schools, particularly if the teacher appears to advocate a particular religious view. Scott said Tuesday's court ruling in Kitzmiller v. Dover only reinforced those limits.

"I think it would be exceedingly unwise for anyone, given the court record of the Kitzmiller case, to argue something like the Gill Lake position where teachers have a constitutional right to teach bad science to their students," Scott said.

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