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Nov 29 2007

From Scopes to Dover-26: The Discovery Institute’s dilemma

(For previous posts in this series, see here.)

The Dover school board policy was challenged in December 2004 as a violation of the establishment clause and so the two sides prepared to go to trial. The lawsuit for the plaintiffs led by Tammy Kitzmiller was filed by the ACLU of Pennsylvania and included experienced constitutional attorneys from the firm of Pepper Hamilton and from the Americans United for Separation of Church and State.

The lawyers who appeared for the Dover school board were from the Thomas More Law Center based in Ann Arbor, Michigan, which saw itself as a kind of Christian counterweight to the ACLU. The center was created in 1999 by Thomas Monaghan, founder of the Dominos pizza chain and financial backer of conservative Catholic causes. Their website is very direct about its mission: “Our purpose is to be the sword and shield for people of faith, providing legal representation without charge to defend and protect Christians and their religious beliefs in the public square.” They were the ones who urged the Dover school board to adopt their policy, offering to represent them in court if challenged. The fact that the Dover school board had this offer of free legal representation undoubtedly influenced board members in the decision to adopt a policy they knew would be controversial.

But as the Dover case prepared to go to the trial that began on September 26, 2005, it became clear that the More Center lawyers were going to face difficulties. While they were surely earnest in their beliefs in the rightness of their cause, dedicated to fighting for it, religiously gung-ho, and eager to do battle against evolution, they simply did not have the legal resources or expertise or even people to mount the kind of research and sophisticated arguments necessary for such an important case. In addition, they faced a highly sophisticated and well-organized team of constitutional lawyers for the plaintiffs. They seemed to be out of their league.

As we have seen, the Dover school board’s actions went contrary to the long-term strategy of the intelligent design creationism (IDC) movement advanced by the Discovery Institute. But once the die was cast and the Dover policy was adopted and challenged in the courts, the Discovery Institute was placed in a quandary. They could see that the More Center was not fully up to the task facing them but it was not clear how they could help. Should they completely disassociate themselves from the Dover school board actions and distance themselves from the case as it went down to likely defeat? Or should they throw themselves fully into the fray, provide their own expert witnesses, pour their considerable financial and legal resources into the case, and hope to secure victory? While the latter was a better tactical option since it increased the chances of winning this case, it had the considerable strategic downside in that if they still lost the case despite their full participation, then the entire IDC movement, not just the Dover school board, would be perceived as having been defeated, and this would have serious repercussions, even possibly dooming their long-term plans.

It was a difficult choice and they waffled. At first they agreed to be part of the case and to provide lawyers and expert witnesses, but that collaboration turned out to be short-lived and they later withdrew, giving as their reason that the Thomas More Law Center objected to their request to have the Discovery Institute’s own lawyers representing their clients. One serious and negative consequence of the Discovery Institute’s decision to withdraw their expert witnesses at the last minute was that it was now too late for the More Center to get alternative expert witnesses for their side. As a result, the plaintiffs were able put forward their own expert witnesses in science and philosophy and theology to provide testimony on important questions that was not rebutted in court and thus was accepted as fact, seriously weakening the defense’s case.

The whole episode caused bad feelings between the Discovery Institute and the More Center which spilled out into the open, as The Toledo Blade reported on March 20, 2006:

In fact, when Mr. Thompson [the head of the Thomas More Law Center] decided to defend the Dover intelligent design policy, he angered the group most associated with intelligent design: the Discovery Institute, a conservative think-tank based in Seattle.

“We were incredibly frustrated by arrogance and bad legal judgment of goading the [Dover] school district to keep a policy that the main organization supporting intelligent design was opposed to,” says John West, the associate director of the Discovery Institute’s Center for Science and Culture.

The Thomas More Center acted “in the face of opposition from the group that actually represents most of the scientists who work on intelligent design.”

. . .

The Discovery Institute has never advocated the teaching of intelligent design, and told the Dover board to drop its policy, Mr. West says. It participated in the trial only reluctantly.

“We were in a bind,” Mr. West says. “Our ideals were on trial even though it was a policy we didn’t support.”

The More Center’s head Richard Thompson countercharged that all these were just excuses to hide the real reason, which was that the Discovery Institute people were essentially cowards, people who talk a tough game but don’t put their beliefs on the line when it counts:

Mr. Thompson says the Discovery Institute’s strategy is to dodge a fight as soon as one appears imminent.

“The moment there’s a conflict they will back away . . .they come up with some sort of compromise.” But in Dover “they got some school board members that didn’t want compromise.”

This intramural battle between two groups supposedly on the same pro-IDC side did not augur well for the trial.

While the Dover trial did not involve larger-than-life, nationally known and flamboyant personalities like the Scopes trial, or dramatic moments like the questioning of Bryan by Darrow, it did have its comedic moments, such as when IDC theorist Michael Behe, who had advocated broadening the definition of science so that IDC would be included under it, conceded under cross-examination that such a broadened definition would result in astrology too being considered a science. Observers considered that moment a pivotal one in dooming the IDC case.

As almost everyone interested in this subject knows by now, on December 20, 2005 federal US District Court Judge John E. Jones III ruled resoundingly in favor of the plaintiffs and against the Dover school board. Not only did he rule that the Dover school board action was unconstitutional, he was also harsh and unsparing in his criticism of the school board’s actions, saying: “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.” (p. 138)

The judge said that both the Lemon test, and the reconceptualization of its purpose and effect prongs as an endorsement test by Justice O’Connor, would be applied to determine the constitutionality of the Dover policy.

The history and actions of the Dover school board clearly showed that it had religious motivations in implementing their policy and thus made it easy for the judge to rule against the school board on the grounds that they had failed to meet the purpose prong of the Lemon test and was thus unconstitutional by virtue of that fact alone. In addition, he found that the policy also violated that effect prong and failed the endorsement test.

The judge went further and also ruled on whether IDC was science. The IDC strategists had desperately wanted to avoid having a judicial determination on whether intelligent design was a science and in fact the Discovery Institute had filed an amicus curiae (“friend of the court”) brief explicitly asking him not to rule on the question of the scientific validity of IDC.

But the judge felt that such a determination was proper, justifying this action by saying that the lengthy discussion on this very question in the trial meant that the issue had received a thorough airing and making such a determination was both useful and even essential. He said: “[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.” (p. 63)

The judge ruled that IDC was not a science but a religion.

It is this aspect of the judge’s ruling that is likely to be most damaging to IDC’s future prospects. Because the topic had received such an exhaustive examination during the trial, and because Judge Jones in his opinion had analyzed this question in such detail extending to 25 pages (p. 64-89), it seems likely that any future case involving intelligent design will depend heavily on his opinion and thus have a strong presumption that IDC is a religion. This is what happened with the Supreme Court in the 1987 case of Edwards v. Aguillard, where they depended heavily on the analysis of the nature of creation science that was written by US District Judge Overton in the 1982 case of McLean v. Arkansas.
It is worthwhile examining Judge Jones’s reasoning in his opinion in some detail because although, like the Scopes trial, this case will not reach the Supreme Court, it seems likely to cast a similarly long shadow. This will be done in the next post.

POST SCRIPT: Roy Zimmerman explains Creation Science 101

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