AR Sec. State: Intelligent Design And Unintelligent Legislation

When Robbie Wills launched his attack against Joyce Elliott’s voting record in the days leading up the runoff, I wrote a post explaining why it was foolish to fault Elliott for voting against a bill that was, without a doubt, unconstitutional. Discussing Establishment-Clause jurisprudence, I said:

Apparently only the nine representatives who voted against the bill (of which Elliott was a member) were smart enough to realize that student-led prayer prior to high school athletic events had already been held unconstitutional by the United States Supreme Court in Santa Fe Indep. Sch. Dist. v. Doe, 530 U. S. 290 (2000). It doesn’t matter that the bill ignorantly stated that such prayers were “permissible under the First Amendment to the United States Constitution;” if anything, that language only serves to underscore how asinine this bill was in the first place, as it was introduced FIVE YEARS after the Supreme Court had already held otherwise.

I mention that because it seems that attempted violations of the Establishment Clause were all the rage in that 2005 House of Representatives session.  Case in point: In addition to co-sponsoring the aforementioned student-led prayer bill, a certain newly minted Rep from District 87 sponsored “An Act Concerning Intelligent Design; Permitting The Teaching Of The Theory Of Intelligent Design In Public Schools; And For Other Purposes.” (PDF)

Mark Martin’s transparent and failed attempts to outsmart the system by carefully choosing his words notwithstanding, the bill is remarkable for one reason. Namely, every single subsection of the bill is logically and/or legally flawed. After the jump, we’ll take it apart piece by piece.  Because that’s what we do.

               For An Act To Be Entitled



SECTION 1. Arkansas Code Title 6, Chapter 16, is amended to
           add an additional subchapter to read as follows:
6-16-1301. Findings.
 The General Assembly finds that:
  (1) The teaching of the theory of intelligent design
  does not require attributing the creation of the
  world or it’s [sic] creatures to any god or gods;

Oh, where to begin? First of all, one of my biggest pet peeves is people who either (a) say that “creationism/intelligent design is a theory, just like evolution” or (even more annoyingly) (b) say “well evolution is only a theory,” as if that somehow makes creationism/intelligent design just as valid. Both of these iterations of the same general thought demonstrate nothing more than ignorance about the scientific method (or, in some cases, willful deception) on the part of the speaker.

Very generally speaking, a scientific theory is one or more principles that conform to empirical data regarding observable phenomena (and abstractions thereof), and it explains the “why” (or “how”) behind the observable phenomena. Most importantly, a scientific theory predicts what will happen, and these predictions are testable and falsifiable. Scientific theories also nearly always demonstrate parsimony, meaning that they are the least complicated explanation for the phenomenon in question (the whole Occam’s razor thing).

Creationism/intelligent design, however, demonstrates none of these things.  It provides no predictive component, as everything that happens or does not happen is chalked up to the “higher power.”  It is not testable or falsifiable for the same reason.  And it should be terribly, terribly obvious that assuming that an all-powerful higher intelligence that is necessarily outside the machine is the reason behind development and change that can be explained through simpler, more visible methods is not in any way parsimonious.  At best, creationism/intelligent design is a philosophical theory, which is a wholly different creature and which, by definition, has no place in a science class.

Additionally, the “it’s only a theory” implies that, if it were better understood, it would be a scientific law.  Except that’s not how it works; theories are always theories, and laws are always laws.  The latter category is made up of the “facts” of the world — Newton’s law of universal gravitation, Einstein’s formula for the energy of photons, Heisenberg Uncertainty Principle, etc. — and the former attempts to explain or interpret those facts.  See the difference?

Ah, but therein lies another flaw with the “it’s only a theory” argument: while there are several theories about evolutionary mechanisms, biological evolution over time is a scientific fact supported both by tons of historical data as well as currently observable phenomena.  Thus, any argument (i.e. creationism) that proceeds from the initial premise that evolution itself is “only a theory” is facially invalid.

(2) The teaching of the theory of intelligent design
does not respect the establishment of any theistic religion
any more than the teaching of evolutionary theory respects
the establishment of the religions of secular humanism or
scientific naturalism;

Jeez. OK, the idea of evolution-as-religion has already been addressed by courts and decided against Martin’s position. In McLean v. Ark. Board of Ed., 529 F. Supp. 1255 (E.D. Ark. 1982), a federal district court found that Arkansas’s “Balanced Treatment for Creation-Science and Evolution-Science Act” was an unconstitutional violation of the Establishment Clause. In that decision, Judge William R. Overton wrote:

The defendants argue in their brief that evolution is, in effect, a religion, and that by teaching a religion which is contrary to some students’ religious views, the State is infringing upon the student’s free exercise rights under the First Amendment. Mr. Ellwanger’s legislative findings, which were adopted as a finding of fact by the Arkansas Legislature in Act 590, provides:

Evolution-science is contrary to the religious convictions or moral values or philosophical beliefs of many students and parents, including individuals of many different religious faiths and with diverse moral and philosophical beliefs. Act 590(d).

The defendants argue that the teaching of evolution alone presents both a free exercise problem and an establishment problem which can only be redressed by giving balanced treatment to creation science, which is admittedly consistent with some religious beliefs. This argument appears to have its genesis in a student note written by Mr. Wendell Bird, “Freedom of Religion and Science Instruction in Public Schools,” 87 Yale L.J. 515 (1978). The argument has no legal merit.

If creation science is, in fact, science and not religion, as the defendants claim, it is difficult to see how the teaching of such a science could “neutralize” the religious nature of evolution. Assuming for the purposes of argument, however, that evolution is a religion or religious tenet, the remedy is to stop the teaching of evolution, not establish another religion in opposition to it. Yet it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause, Epperson v. Arkansas, 393 U.S. 97 (1968); Willoughby v. Stever, No. 15574-75 (D.D.C. May 18, 1973), aff’d. 504 F.2d 271 (D.C. Cir. 1974), cert. denied , 420 U.S. 924 (1975); Wright v. Houston Indep. School Dist., 366 F. Supp. 1208 (S.D. Tex 1978), aff.d. 486 F.2d 137 (5th Cir. 1973), cert. denied 417 U.S. 969 (1974).

The McLean decision was one in a series of lawsuits about the teaching of creationism in public schools that reached the courts in the 1970s and 1980s, culminating in Edwards v. Aguillard, 482 U.S. 578 (1987), in which the U.S. Supreme Court ruled:

As in Stone and Abington, we need not be blind in this case to the legislature’s preeminent religious purpose in enacting this statute. There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution.  It was this link that concerned the Court in Epperson v. Arkansas, 393 U.S. 97 (1968), which also involved a facial challenge to a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas antievolution law did not explicitly state its predominate religious purpose, the Court could not ignore that “the statute was a product of the upsurge of ‘fundamentalist’ religious fervor” that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. Id., at 98, 106-107. After reviewing the history of antievolution statutes, the Court determined that “there can be no doubt that the motivation for the [Arkansas] law was the same [as other anti-evolution statutes]: to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man.” Id., at 109. The Court found that there can be no legitimate state interest in protecting particular religions from scientific views “distasteful to them,” id., at 107 (citation omitted), and concluded “that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma,” id., at 106.

These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. The term “creation science” was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act[….]

Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act’s primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. The sponsor of the Creationism Act, Senator Keith, explained during the legislative hearings that his disdain for the theory of evolution resulted from the support that evolution supplied to views contrary to his own religious beliefs. According to Senator Keith, the theory of evolution was consonant with the “cardinal principle[s] of religious humanism, secular humanism, theological liberalism, aetheistism [sic].”  The state senator repeatedly stated that scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with what he characterized as religious beliefs antithetical to his own. The legislation therefore sought to alter the science curriculum to reflect endorsement of a religious view that is antagonistic to the theory of evolution.

In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects. As in Epperson, the legislature passed the Act to give preference to those religious groups which have as one of their tenets the creation of humankind by a divine creator. The “overriding fact” that confronted the Court in Epperson was “that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with . . . a particular interpretation of the Book of Genesis by a particular religious group.” 393 U.S., at 103. Similarly, the Creationism Act is designed either to promote the theory of creation science which embodies a particular religious tenet by requiring that creation science be taught whenever evolution is taught or to prohibit the teaching of a scientific theory disfavored by certain religious sects by forbidding the teaching of evolution when creation science is not also taught. The Establishment Clause, however, “forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma.” Id., at 106-107 (emphasis added). Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment.

482 U.S. 578 (emphases added).

Following Edwards, creationists revamped their model and repackaged it as “intelligent design,” using word-choice similarly deliberate to the efforts of Mr. Martin in drafting this bill; the words “God,” “creation,” and “Genesis” were purposefully removed and were replaced with an unidentified “intelligent designer.”  Despite this duplicitous effort by proponents of intelligent design, in Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Penn. 2005), a federal district court struck down a statute very similar to Martin’s on the basis that intelligent design was not science, noting:

The concept of intelligent design (hereinafter “ID”), in its current form, came into existence after the Edwards case was decided in 1987. For the reasons that follow, we conclude that the religious nature of ID would be readily apparent to an objective observer, adult or child.

We initially note that John Haught, a theologian who testified as an expert witness for Plaintiffs and who has written extensively on the subject of evolution and religion, succinctly explained to the Court that the argument for ID is not a new scientific argument, but is rather an old religious argument for the existence of God. He traced this argument back to at least Thomas Aquinas in the 13th century, who framed the argument as a syllogism: Wherever complex design exists, there must have been a designer; nature is complex; therefore nature must have had an intelligent designer. Dr. Haught testified that Aquinas was explicit that this intelligent designer “everyone understands to be God.”  The syllogism described by Dr. Haught is essentially the same argument for ID as presented by defense expert witnesses Professors Behe and Minnich who employ the phrase “purposeful arrangement of parts.”

Dr. Haught testified that this argument for the existence of God was advanced early in the 19th century by Reverend Paley and defense expert witnesses Behe and Minnich admitted that their argument for ID based on the “purposeful arrangement of parts” is the same one that Paley made for design. The only apparent difference between the argument made by Paley and the argument for ID, as expressed by defense expert witnesses Behe and Minnich, is that ID’s “official position” does not acknowledge that the designer is God. However, as Dr. Haught testified, anyone familiar with Western religious thought would immediately make the association that the tactically unnamed designer is God, as the description of the designer in Of Pandas and People (hereinafter “Pandas”) is a “master intellect,” strongly suggesting a supernatural deity as opposed to any intelligent actor known to exist in the natural world. Moreover, it is notable that both Professors Behe and Minnich admitted their personal view is that the designer is God and Professor Minnich testified that he understands many leading advocates of ID to believe the designer to be God.

Although proponents of the IDM occasionally suggest that the designer could be a space alien or a time-traveling cell biologist, no serious alternative to God as the designer has been proposed by members of the IDM, including Defendants’ expert witnesses. In fact, an explicit concession that the intelligent designer works outside the laws of nature and science and a direct reference to religion is Pandas’ rhetorical statement, “what kind of intelligent agent was it [the designer]” and answer: “On its own science cannot answer this question. It must leave it to religion and philosophy.” A significant aspect of the IDM is that despite Defendants’ protestations to the contrary, it describes ID as a religious argument. In that vein, the writings of leading ID proponents reveal that the designer postulated by their argument is the God of Christianity. Dr. Barbara Forrest, one of Plaintiffs’ expert witnesses, is the author of the book Creationism’s Trojan Horse. She has thoroughly and exhaustively chronicled the history of ID in her book and other writings for her testimony in this case. Her testimony, and the exhibits which were admitted with it, provide a wealth of statements by ID leaders that reveal ID’s religious, philosophical, and cultural content. The following is a representative grouping of such statements made by prominent ID proponents.

Phillip Johnson, considered to be the father of the IDM, developer of ID’s “Wedge Strategy,” which will be discussed below, and author of the 1991 book entitled Darwin on Trial, has written that “theistic realism” or “mere creation” are defining concepts of the IDM. This means “that God is objectively real as Creator and recorded in the biological evidence . . .”.  In addition, Phillip Johnson states that the “Darwinian theory of evolution contradicts not just the Book of Genesis, but every word in the Bible from beginning to end. It contradicts the idea that we are here because a creator brought about our existence for a purpose.”  ID proponents Johnson, William Dembski, and Charles Thaxton, one of the editors of Pandas, situate ID in the Book of John in the New Testament of the Bible, which begins, “In the Beginning was the Word, and the Word was God.” Dembski has written that ID is a “ground clearing operation” to allow Christianity to receive serious consideration, and “Christ is never an addendum to a scientific theory but always a completion.”

Moreover, in turning to Defendants’ lead expert, Professor Behe, his testimony at trial indicated that ID is only a scientific, as opposed to a religious, project for him; however, considerable evidence was introduced to refute this claim. Consider, to illustrate, that Professor Behe remarkably and unmistakably claims that the plausibility of the argument for ID depends upon the extent to which one believes in the existence of God.  As no evidence in the record indicates that any other scientific proposition’s validity rests on belief in God, nor is the Court aware of any such scientific propositions, Professor Behe’s assertion constitutes substantial evidence that in his view, as is commensurate with other prominent ID leaders, ID is a religious and not a scientific proposition.Dramatic evidence of ID’s religious nature and aspirations is found in what is referred to as the “Wedge Document.” The Wedge Document, developed by the Discovery Institute’s Center for Renewal of Science and Culture (hereinafter “CRSC”), represents from an institutional standpoint, the IDM’s goals and objectives, much as writings from the Institute for Creation Research did for the earlier creation-science movement, as discussed in McLean.  The Wedge Document states in its “Five Year Strategic Plan Summary” that the IDM’s goal is to replace science as currently practiced with “theistic and Christian science.” As posited in the Wedge Document, the IDM’s “Governing Goals” are to “defeat scientific materialism and its destructive moral, cultural, and political legacies” and “to replace materialistic explanations with the theistic understanding that nature and human beings are created by God.” The CSRC expressly announces, in the Wedge Document, a program of Christian apologetics to promote ID. A careful review of the Wedge Document’s goals and language throughout the document reveals cultural and religious goals, as opposed to scientific ones. ID aspires to change the ground rules of science to make room for religion, specifically, beliefs consonant with a particular version of Christianity. In addition to the IDM itself describing ID as a religious argument, ID’s religious nature is evident because it involves a supernatural designer. The courts in Edwards and McLean expressly found that this characteristic removed creationism from the realm of science and made it a religious proposition.  Prominent ID proponents have made abundantly clear that the designer is supernatural. Defendants’ expert witness ID proponents confirmed that the existence of a supernatural designer is a hallmark of ID. First, Professor Behe has written that by ID he means “not designed by the laws of nature,” and that it is “implausible that the designer is a natural entity.” Second, Professor Minnich testified that for ID to be considered science, the ground rules of science have to be broadened so that supernatural forces can be considered. Third, Professor Steven William Fuller testified that it is ID’s project to change the ground rules of science to include the supernatural.  Turning from defense expert witnesses to leading ID proponents, Johnson has concluded that science must be redefined to include the supernatural if religious challenges to evolution are to get a hearing. Additionally, Dembski agrees that science is ruled by methodological naturalism and argues that this rule must be overturned if ID is to prosper.

Further support for the proposition that ID requires supernatural creation is found in the book Pandas, to which students in Dover’s ninth grade biology class are directed. Pandas indicates that there are two kinds of causes, natural and intelligent, which demonstrate that intelligent causes are beyond nature. Professor Haught, who as noted was the only theologian to testify in this case, explained that in Western intellectual tradition, non-natural causes occupy a space reserved for ultimate religious explanations. Robert Pennock, Plaintiffs’ expert in the philosophy of science, concurred with Professor Haught and concluded that because its basic proposition is that the features of the natural world are produced by a transcendent, immaterial, non-natural being, ID is a religious proposition regardless of whether that religious proposition is given a recognized religious label. It is notable that not one defense expert was able to explain how the supernatural action suggested by ID could be anything other than an inherently religious proposition. Accordingly, we find that ID’s religious nature would be further evident to our objective observer because it directly involves a supernatural designer.

A “hypothetical reasonable observer,” adult or child, who is “aware of the history and context of the community and forum” is also presumed to know that ID is a form of creationism.  The evidence at trial demonstrates that ID is nothing less than the progeny of creationism. What is likely the strongest evidence supporting the finding of ID’s creationist nature is the history and historical pedigree of the book to which students in Dover’s ninth grade biology class are referred, Pandas. Pandas is published by an organization called FTE, as noted, whose articles of incorporation and filings with the Internal Revenue Service describe it as a religious, Christian organization.

Pandas was written by Dean Kenyon and Percival Davis, both acknowledged creationists, and Nancy Pearcey, a Young Earth Creationist, contributed to the work.  As Plaintiffs meticulously and effectively presented to the Court, Pandas went through many drafts, several of which were completed prior to and some after the Supreme Court’s decision in Edwards, which held that the Constitution forbids teaching creationism as science. By comparing the pre and post Edwards drafts of Pandas, three astonishing points emerge: (1) the definition for creation science in early drafts is identical to the definition of ID; (2) cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred shortly after the Supreme Court held that creation science is religious and cannot be taught in public school science classes in Edwards. This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content, which directly refutes FTE’s argument that by merely disregarding the words “creation” and “creationism,” FTE expressly rejected creationism in Pandas. In early pre- Edwards drafts of Pandas, the term “creation” was defined as “various forms of life that began abruptly through an intelligent agency with their distinctive features intact – fish with fins and scales, birds with feathers, beaks, and wings, etc,” the very same way in which ID is defined in the subsequent published versions.  This definition was described by many witnesses for both parties, notably including defense experts Minnich and Fuller, as “special creation” of kinds of animals, an inherently religious and creationist concept. Professor Behe’s assertion that this passage was merely a description of appearances in the fossil record is illogical and defies the weight of the evidence that the passage is a conclusion about how life began based upon an interpretation of the fossil record, which is reinforced by the content of drafts of Pandas. The weight of the evidence clearly demonstrates, as noted, that the systemic change from “creation” to “intelligent design” occurred sometime in 1987, after the Supreme Court’s important Edwards decision. This compelling evidence strongly supports Plaintiffs’ assertion that ID is creationism re-labeled. Importantly, the objective observer, whether adult or child, would conclude from the fact that Pandas posits a master intellect that the intelligent designer is God.

(emphases added)

In sum, Martin’s bill was pushing a position that one federal court — the only court to rule on the issue thus far — found to be utterly without legal merit. Regardless of Martin’s contentions, intelligent design has been found (as it should) to be nothing more than creationism re-named. Moreover, the Supreme Court has already disagreed with him as to the religious nature of evolution, and that disagreement predated Martin’s proposed law, making his assertion to the contrary asinine at best.

(3) Science should be taught in the spirit of free inquiry,
including the discussion of the pros and cons of theories
of origins;

I agree with this completely.  However, as intelligent design is not a scientific theory, this statement really has no bearing on the propriety of teaching intelligent design in a science class.

(4) When topics are taught that may generate
controversy, such as biological evolution,
the curriculum should help students to understand
the full range of scientific views that exist; and

Again, intelligent design is not science, nor is it a “scientific view.”  Are we clear on that yet?

Additionally, biological evolution only “generate[s] controversy” inasmuch as the Bible disagrees with the concept. There is no controversy among scientists as to whether biological evolution exists; it does. The only controversy, such that it is, is how evolutionary processes work. As the court in Kitzmiller explained:

[W]e find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community. ID, as noted, is grounded in theology, not science. Accepting for the sake of argument its proponents’, as well as Defendants’ argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. Moreover, ID’s backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.

So, to the extent that Martin’s bill attempted to focus attention on the “controversy” rather than the problems with intelligent design, his position still fails.

Finally, with respect to the language of the proposed bill,

(5) The prohibition of teaching alternative
scientific theories is the cruelest and most
abusive form of censorship because it prevents the
very debate necessary for the scientific proof or
disproof of competing theory.

The irony of speaking about “disproof” of evolution when intelligent design by its very nature cannot be disproved and Martin’s hyperbolic ridiculousness notwithstanding, refusing to teach creationism or intelligent design in a biology class is no more “censorship” than refusing to teach French or civics in biology class would be. None of them — creationism, intelligent design, French, or civics — is science, thus none has any place in science class.  Looking at it from the other side, would you expect a church to discuss the scientific evidence behind evolution in a sermon about Genesis?  Of course not.

As Kitzmiller explained:

To conclude and reiterate, we express no opinion on the ultimate veracity of ID as a supernatural explanation. However, we commend to the attention of those who are inclined to superficially consider ID to be a true “scientific” alternative to evolution without a true understanding of the concept the foregoing detailed analysis. It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science.

So, why do I bring all of this up now, five years after this bill died in committee and did not even get to suffer the ignominious defeat in court that it undoubtedly would have?  Two reasons:  (1) because I am sick to death of Republicans purporting to defend the U.S. Constitution against encroachment from the left when they have shown at every turn a willingness to ignore parts of it that don’t fit their agenda (habeas corpus, separation of church and state, freedom of speech, etc.), and (2) because Martin’s attempt to circumvent the Establishment Clause in an attempt to shove his religious views down the throats of Arkansans is just as troubling as his complete unfamiliarity with the Arkansas tax code (despite having voted on changes to certain parts of it).  Either Martin was being obtuse in an effort to impose his own religious views on the entire state of Arkansas, or he was so ignorant of Supreme Court caselaw and, more importantly, the underpinnings of the scientific method that he actually believed the statements in this bill.  Maybe I am alone here, but neither answer is acceptable to me from someone seeking to hold an important statewide office.

Postscript: Lest I be accused of picking only on Republicans on this issue, here’s Mark Pryor looking like a buffoon while discussing evolution (and religion generally).

Remember, kids, “you don’t have to pass an IQ test to be in the Senate.”  Which, I suppose, is great news for Mark Martin.


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