Kitzmiller Debate on the Montana Law Review

The Montana Law review has a debate on the merits of the Kitzmiller case in Dover Pensylvania where Bush-appointed contructionist judge John E. Jones III ruled that Intelligent Design was religion, not science, and as such had no place in American schoolchildren's science classrooms. The Discovery Institute and the rest of the ID world has been whining ever since. They fire the first volley here, then there is a response by Peter Irons, and then Luskin, De Wolf and West (LDW)offer a rebuttal.

Being neither a scientist, nor a lawyer, I don't dare delve into the minutia of those arenas. I'll leave that to those that will do it best. However, there were a few passages that I thought worthy of note:

LDW: the Center for Science and Culture was recognized as the leading supporter of research and scholarship on ID.

I had to chuckle at this. Despite much ballyhooed anticipation, the "research and scholarship" produced by the IDers has been tiny, to put it kindly. They can't even find enough material for their own journal, which hasn't published anything new since November of 2005.

Irons: Some DI donors, concerned about the DI’s primary focus on propaganda rather than hard-science research to back up ID’s scientific pretensions, have withdrawn their financial support. The Templeton Foundation, which funds a broad range of policy groups, reportedly asked DI officials to submit proposals for ID research. “They never came in,” said Charles Harper, Jr., Templeton’s senior vice president. “From the point of view of rigor
and intellectual seriousness, the intelligent design people don’t come out very well in our world of scientific review.”

Science has come a long way in the ten years since Michael Behe published "Darwin's Black Box". ID is still where it was, and still making the same mistakes. Being the leading supporter of such efforts is a dubious honor at best.

LDW: Cooper sent Buckingham materials that included a DVD based on the book Icons of Evolution and a study guide prepared as a companion to Icons of Evolution. Notably, these materials focused only on scientific criticisms of Darwin’s theory. They did not discuss ID.

But that is all ID is. Dembski himself described it as "the set theoretic complement of chance and regularity", ie evolution. Indeed, one of the consistent criticisms of ID is that it proffers no thesis of its own. The language is more sciency and mathy than earlier incarnations of Paleyism, but in the end it is the same schtick: evolution couldn't have done this, therefore God did.

LDW: eighty-five scientists...filed an amicus brief imploring the court not to assume that scientific
questions could be resolved by judicial decree... there is no evidence from the text of Judge Jones’s opinion that he ever considered the arguments made in either brief. By contrast, “90.9% (or 5,458 words) of Judge Jones’s 6,004-word section on intelligent design as science was taken virtually verbatim from the ACLU’s proposed ‘Findings of Fact and Conclusions of Law’ submitted to Judge Jones nearly a month before his ruling.”

This becomes really funny once you have a lawyer explain it to you. In cases like this, each side prepares a brief and submits it to the judge, where they basically sum up their case. Judges then write their decisions from selected quotes from those briefs, as well as original commentary. Of course the judge is going to use those arguments he found most persuasive for his ruling. So what this boils down to is the IDers are claiming the game was rigged solely because they lost it so badly. Jones simply found extremely little of what they had to say worthy of inclusion.

One of the main arguments made by the IDers is that Judge Jones was an activist judge in this case because he ruled on issues not necessary to the case at hand. This apparently is something within the discretion of judges to do. It is a way of offering guidance as to the implications of the ruling on future cases. The IDers claim Judge Jones overstepped his bounds in ruling ID not science, since the case was primarily about whether an Establishment Clause violation had occurred. It is here where the law gets interesting:

LDW: Under the disjunctive Lemon test, all that was necessary to determine that an Establishment Clause violation had occurred was to find that the Dover school board members had predominantly religious motivations for enacting their ID policy.

One fun trait of IDers is they have a tendency to shoot themselves in the foot. This is easier to understand when one recalls that ID is at its core a religious/political, not scientific, movement. As such, sometimes the implications of the current strategy aren't understood by all the participants, or everyone didn't get the latest bulliton on what to say and not say. Take for example "Of Pandas and People" co-author Dean Kenyon saying "Of course my motives were religious. There’s no question about it"

Here, the IDer's legal argument implicitly assumes that it isn't science:

Peter Irons: The DI authors argue that “[l]ongstanding U.S. Supreme Court precedent” militates against “decid[ing] questions beyond the necessities of the immediate issue.” As a general proposition, this is sound advice. In my view, however, the “fatal flaw” in the DI’s attack on the Kitzmiller opinion stems from the DI authors’ failure to grasp that deciding the question of whether ID is science was essential to Judge Jones’s ruling against the Dover school board’s effort to include ID in the biology curriculum. The reason is simple. If ID is, in fact, a
legitimate scientific theory, as its proponents claim, it might well have a place in the science curriculum. And if so, the religious motives of the Dover board members who adopted the ID policy become irrelevant, as do the religious beliefs of ID proponents.

On this crucial issue, the DI authors cite the so-called Lemon test, in which the Supreme Court set out the “purpose” and “ef-fect” tests in Establishment Clause cases. In an undoubtedly unintentional slip, which they may well regret, the DI authors have effectively given away the store with their concession that under the Lemon test, “all that was necessary [for Judge Jones] to determine that an Establishment Clause violation had occurred was to find that the Dover school board members had predominantly religious motivations for enacting their ID policy.” To repeat, those religious motivations would have been irrelevant if ID was in fact a legitimate scientific alternative to Darwinian evolution.

I also take special note of Irons second comment:

As a general proposition, this is sound advice.

One way the different points of view (dogmatic on the part of the creationist/IDers, more amenable to persuasion and aware of the possibility of error on the scientific side) reveal themselves is in statements like this. Rarely do creationist/IDers consent to even the tiniest point by their opposition, or areas of possible error. Their attitude was summed up well by Michael Behe at Dover, who explained that it was up to his critics to perform the falsifiable experiments relevant to his theory, because he had more "fruitful" uses for his time. Irons demeaner stands in stark contrast to that.

An additional problem for the IDers is they claim what Jones did was activism, but as explained here, it was really a concept called "orbiter dicta". That they made their argument in an often childish manner and tone didn't help matters much:

LDW: Proclaiming that one is not an activist judge does not make it so. And claiming that those who charge “judicial activism” simply disagree with the ruling and have nothing better to say does not mean that reasonable arguments cannot be raised...

Can't you just see the pimply faced kid with his thumbs in his ears going "Nyah Nyah Nyah!" Put Irons' piece next to the IDers' material and read them side by side. It literally looks like an adult arguing with a child.

And then there is the usual DI misrepresentation of the issue of what ID is:

LDW: It is important from the outset to understand that labeling ID “creationism” simply because many of its proponents believe God created the universe would define the term so broadly as to make it largely meaningless. For example, biologist Kenneth Miller, one of the plaintiffs’ expert witnesses, conceded on the witness stand that he was a creationist when “creationist” is understood to mean anyone who believes that the universe was created by God.

Yes, but the only people doing that are the IDers. It is one of their rhetorical tricks that makes them so slippery. They like to talk about what ID is not, but they do everything they can to not be clear about what it is. "The set compliment of chance and reglarity" is about as detailed as you can get them. This gives them rhetorical advantages. If ID is roundly debunked, just accuse your interlocutor of misrepresenting ID, and that the REAL ID has no such problems.

"God created the universe" is a vague theistic position, and most Christians hold it to some degree. The difference however, between theistic evolution supporters (TEs) like Ken Miller and IDers like Michael Behe, is that TEs mean it in a much more vague sense, often having evolution completely materialistic, and leaving as God's job to set universal constants. IDers, on the other hand, claim to be able to scientifically show that specific items, such as the bacterial flagellum, or the human eye, could not have arisen via evolution and therefore must have been created by God, er, the Intelligent Designer. This is why IDers draw the wrath of the scientific community, whereas TEs don't. Miller keeps the gods out of the lab. Behe claims he can scientifically demonstrate they are there.