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Is Teaching Intelligent Design Illegal?: A Debate
By: Francis J. Beckwith and Douglas Laycock
Legal Affairs
September 26, 2005

Original Article

The "Monkey trial" of John Scopes is generally thought to have set back the anti-evolution forces which were gathering momentum 80 years ago, but in recent years they have massed again. Intelligent design—a theory that acknowledges evolution yet presumes a "designer" behind it—appears poised to deliver better results for doubters about Darwin's view of evolution. While some call it "stealth creationism," intelligent design avoids naming the "designer" and, as a result, may avoid creationism's largest legal hurdle: the Establishment Clause.

This week, proponents of "ID" are defending their cause in federal court in Pennsylvania. Is it illegal to teach intelligent design?

Francis J. Beckwith
is Associate Director of the J. M. Dawson Institute of Church-State Studies, and Associate Professor of Church-State Studies at Baylor University. Douglas Laycock holds the Alice McKean Young Regents Chair in Law at The University of Texas at Austin.

Beckwith: 9/26/05, 12:18 PM
Doug, you and I have interacted on the religion and law listserv for several years, so we should feel right at home in this venue.

My answer to the question is "no, but," with an emphasis on the "but." Thus, my first comments in this debate will focus on definitions and clarifications.

Intelligent design (or ID) is not one theory. It is a short-hand name for a cluster of arguments that offer a variety of cases that attempt to show that intelligent agency rather than unguided matter better accounts for apparently natural phenomena or the universe as a whole. Some of these arguments challenge aspects of neo-Darwinism. Others make a case for a universe designed at its outset, and thus do not challenge any theory of biological evolution.

But even ID advocates who criticize neo-Darwinism are technically not offering an alternative to evolution, if one means by evolution any account of biological change over time that claims that this change results from a species' power to accommodate itself to varying environments by adapting, surviving, and passing on these changes to its descendants. This is not inconsistent with a universe that has earmarks and evidence of intelligent design that rational minds may detect.

This is why it is incorrect to think of ID as a form of "creationism," a term of art in constitutional law that refers to a belief that a literal interpretation of Genesis' first thirteen chapters is true. Because that belief served as the primary reason for some states to ban evolution or teach creationism, the Supreme Court struck down those laws as violations of the Establishment Clause.

Because ID arguments do not contain Genesis and its tenets as propositions, and because ID arguments rely on empirical facts and conceptual notions by which they support their conclusions, ID does not run afoul of the Constitution. Of course, the cases for ID may indeed fail as arguments, but that is not a violation of the Establishment Clause.

To say that teaching ID in public schools is legal is to say merely that it is constitutionally permissible. For example, it seems to me that if a science teacher were to present an ID argument by using relevant material that is supplementary to the curriculum and not a violation of any legal and curricular duties, her instruction is protected speech under the rubric of academic freedom.

As a matter of policy, I believe there are good reasons why a public school should not require the teaching of ID. Nevertheless, there are no good constitutional reasons to prohibit a teacher from teaching it or a school board from requiring it.

Laycock: 9/26/05, 05:24 PM
Frank you say "no, but;" I say "yes, but." This may be a tame debate, but perhaps it will generate more light than heat.

Neither evolution nor intelligent design is a single theory. Each theory has its internal debates, but each has a core content common to all its variations. Evolution claims that all species are descended from common ancestors, and that new species have emerged by random variation and various forms of selection (not just survival of the fittest, but also sexual selection, linkages between genes, some amount of random drift, and no doubt others). Intelligent design makes one large and vague affirmative claim—that some form of intelligence must have designed existing life forms. Most of its claims are negative: that in various ways, evolution cannot account for the existence of life or the variety of species.

Scientists overwhelmingly support evolution, and mostly for good reason. But in their exasperation with their critics, they often overstate what they know and overstate the scope of their domain. Science is strongest with respect to the claim of common descent, where enormous quantities of evidence have been accumulated both from living species and from the fossil record. To teach this as a debate that is scientifically open would be more misleading than educational.

Science is weakest at the very beginning of life. There is no fossil record from that era; science has mostly unverified theories and some inconclusive lab experiments. Intelligent Design invokes molecular biology to argue that any form of life is irreducibly complex and must have been designed. Scientists properly reply that they haven't yet learned how life emerged, but that there is no reason to give up on searching for a natural explanation. In political debates, they are prone to go further and imply that evolution is equally supported by overwhelming evidence at every step.

It is entirely lawful for public school teachers to say we know much less about a natural explanation for the origins of life than about a natural explanation for the evolution of different species once life begins. But it would be an important additional step, sounding more in religion than in science, for the teacher to say that therefore, an intelligent designer must have created the first living things.

Each sentence in the preceding paragraph would make more sense with an explanation of why we might care about a natural explanation, and thus about the boundaries between science and religion. The length limits in this discussion require that I postpone that explanation to my second post.

Beckwith: 9/27/05, 03:29 PM
Doug, I was going to mention length constraints. So, I'm glad you did. The issue over which we are debating has so many different angles and nuances that it's sometimes difficult to say all you want to say in a way that's fair to all parties but strongly affirms the view you're defending.

In any event, I do not carry a brief for all that is placed under the umbrella of ID. My interest has always been on whether, in principle, the state is constrained by the Establishment Clause from allowing or requiring the teaching ID in public schools. Whether the arguments for ID work or not is an independent question but certainly relevant to the policy question. I think your comments address that issue and raise concerns with which I am sympathetic. However, the Establishment Clause question is different.

I agree with you about the limits of science and the tendency on the part of some scientists to overstate the scope of their disciplines. But I think that this is what happens when science is thought to be the only way we know things and that science assumes that only naturalistic answers count as real answers. Thus, we should not be surprised to discover overly confident scientists and philosophers who claim that there are only naturalistic answers for everything and that there can never in principle be non-naturalistic alternatives that can count against those answers. This is what I think is at the root of what's going on in Dover.

The way I see it, parents and school board members correctly believe that naturalistic science does not exhaust the scope of what counts as rational (or even what may count as "science," something over which philosophers of science disagree). Over the past couple of years these citizens have come across well-credentialed philosophers and scientists who have published arguments to defend this point of view. These arguments have been published in peer-reviewed books and journals across several disciplines including the sciences and philosophy. Some of these works challenge naturalism's explanatory power to account for the universe's beginning and the emergence of life. Rather than leaving it at that, they offer an alternative account that takes both the present cosmological evidence and what we know about agents and infers from them that an intelligence best accounts for the state of the universe at its genesis (pardon the pun).

This is where I think the real action is in terms of the Establishment Clause: is it constitutionally permissible for a teacher to offer, or a school board to permit, secular arguments that challenge scientific naturalism?

Laycock: 9/28/05, 09:02 AM
Now we're getting to the heart of it. Frank, you say that natural explanations may not be the only explanations, and that science may not be the only way to know things. I have spent most of my career defending the right of every American to believe in supernatural persons, events, and explanations, and to act on those beliefs. That is not the point at which we disagree.

We disagree over how to protect that liberty. Supernatural explanations are outside the scope of science; they are inherently religious. Government must stay out of religion so that each American's religious choices and commitments will be free. Science, and government, are confined to naturalistic explanations.

The investigation of natural explanations is what science is, and it is that conception of science that has led to the unprecedented scientific progress of the last few centuries. Supernatural explanations stop scientific progress by cutting off investigation. In response to any unresolved problem, it is always possible to say that "God did it." Maybe so, but that explanation offers no testable hypothesis and no lines for further research.

Science does not deny that God may have done it; that question is simply outside the scope of science. The task that science sets for itself is to find the best possible natural explanation and to test that explanation against the available evidence. Scientists may, and do, argue that existing explanations are inadequate in places. The refereed scholarly journals are full of such debates. But intelligent design theorists do not publish in refereed journals, because their science does not measure up to scholarly standards and because they have a nonscientific agenda—not improving the natural explanation, but offering a supernatural explanation instead. That is an entirely legitimate agenda, but it is a religious agenda, not a scientific one.

Government must also avoid supernatural explanations, but the reasons are different. Government can take no position on any question concerning a supernatural entity (including an Intelligent Designer of a universe), because the preservation of religious liberty requires government to stay out of religious questions. A government with power to teach your religion in the schools also has power to deny your religion in the schools and teach someone else's religion instead. In the days when government took sides on religion, no one's religion was safe.

The path to resolving the controversy over origins is to explain the difference between science and religion. Religious students can believe what they want about God's role in directing or even bypassing natural explanations. The Constitution protects all such beliefs, but they are not scientific beliefs, and they are not beliefs that can be taught—or opposed—in the public schools. The science course can teach only the best available natural explanation; it must leave all questions about supernatural explanations to the private sector.

Beckwith: 9/28/05, 12:10 PM
Doug, I have benefited from your wonderful work in defense of religious liberty. And I agree that the value of religious liberty is not in dispute between us. But what I think is in dispute is whether that liberty permits a citizen to affirm her beliefs as true and to make her case, on non-religious grounds, for their inclusion in our laws. Tolerating religious believers is a piece of cake; tolerating people who think their beliefs are true and rationally defensible is what freaks people out. Let me try to explain.

You claim that ID advocates have never offered their views in peer-reviewed publications (which is factually inaccurate, though surely they have not published nearly enough to require ID's inclusion in science textbooks). Then you claim that non-natural explanations don't count as science. But this means that your position on ID's illegality would remain unchanged even if ID advocates published 500 peer-reviewed articles a year. So, it's only the second point that matters: non-natural explanations can never count against natural ones.

I assume that you think, as I do, that public schools should teach what is true and not what is false. But if science is committed to naturalism and naturalist claims can never be defeated by non-natural ones, then in principle a view consistent with naturalism should be taught as the best view even if a better view inconsistent with naturalism has stronger arguments in its favor. Unless naturalism is the unrevisable truth, it follows that public schools are obligated to not teach the better view if the better view lends support to, or is consistent with, a non-naturalist worldview. But this is a deliverance of philosophy, not science. For the claim that a necessary condition of science is naturalism is not a claim of science, but a philosophical claim about science, just as a claim about the nature of law (e.g., "laws are based on moral principles") is not a claim of law (e.g., "x, y, z, are the elements of negligence") but a claim about law.

Thus, it seems to me that you are suggesting that the government ought to be committed to a philosophical orthodoxy that can never in principle be revised.

One more thing: What I've read of ID advocates, virtually none of them argues "natural explanations don't work here, so God did it; no more evidence needed." They usually argue: X exists, the properties of X exhibit the effects of mind and not matter and/or law, thus, X is likely the result of a mind, which may or may not be God.

Laycock: 9/29/05, 09:00 AM
I would not just "tolerate"—I would protect the free speech, free exercise, and equality rights of people who think their religious beliefs "are true and rationally defensible." But I would also protect the free speech, free exercise, and equality rights of other people who think that their quite different religious beliefs are true, and of still other people who believe that all religions are false. It is equal protection for the religious liberty of all persons that makes it impermissible for the government to teach any one group's religious beliefs in public schools.

This does not mean that public schools can knowingly teach what is false. If intelligent design theorists have plausible scientific refutations of currently accepted scientific models, they can publish those papers in peer-reviewed scientific journals. Their criticism of evolution could be stated in purely scientific terms and methods, and if they began to persuade scientists, the resulting gaps in natural explanations could be taught in public schools.

They have not done this. All the intelligent design theorists who ever lived have not published more than one or two papers in peer-reviewed science journals. A few more have been published in peer-reviewed journals of nonscientific disciplines, more in student-edited law reviews, and more yet in various forms of self-publication. I may have a detail wrong in that sentence, but the big picture is accurate.

As I said yesterday, the way to protect the rights of students who believe in an intelligent designer is to explain the boundaries of science and of religion. The explanation that God created all forms of life is nonfalsifiable. That is a disadvantage in science, but an advantage in religion—religious people can believe it no matter what the science says. Many Americans believe that God guided or designed evolution; science simply has nothing to say about that belief. (Science says that no such guidance was necessary; purpose or guidance is no part of the scientific model. But science has nothing to say about whether such guidance occurred.) Other Americans apparently believe that God planted false evidence of evolution in the ground to test our faith; science has nothing to say about that belief either.

Science does say that intelligent design has not yet cast reasonable scientific doubt on prevailing scientific models. If that changes, the resulting scientific debate could be taught in public schools. But even in that event, the alternative explanation of an Intelligent Designer should still be reserved for the private sector. Government can teach that we just don't know how life began or evolved, if that is scientifically true. But government cannot teach that God or some other supernatural power created or designed life.

Beckwith: 9/29/05, 10:58 AM
I agree with much of your last reply. It seems that you and I concur that in principle some ID arguments could be taught but that in the present state of the debate they should not be required. However, you add the qualification that public schools should never teach that the designer is God, for that violates religious establishment.

But it seems to me that your position has shifted slightly. On Tuesday, you said that naturalism is a necessary condition for science, but now you say that some ID arguments, which challenge naturalism, could be science.

I think your shift is based on the right intuitions. You say that scientific claims must be falsifiable, and for this reason, "God," as an explanatory hypothesis, is not science because it is unfalsifiable. Although that claim is controversial among philosophers of science and religion, I'll assume it's correct for the sake argument. But what's good for the goose is good for the gander.

Many people claim that science is inexorably wedded to naturalism and that a non-naturalist account, such as ID, is a "science stopper" because there could always be a naturalistic answer that has yet to be discovered. But
such a view of science is unfalsifiable, for it is saying that we should never accept that the non-naturalist account is better than the naturalist account even if the arguments for the former are far superior to the latter. So, in principle, no evidence can ever falsify the naturalist component in this definition of science. But if falsifiability is a necessary condition for science, then this view of science must be rejected because it is unfalsifiable. However, if non-naturalist views could count against naturalist views, as you now seem to concede, this means that ID arguments cannot in-principle be excluded from the realm of science.

I agree that a public school teacher should not claim that "the designer is God," but I would add this condition: she also should not quote as authoritative anything like Carl Sagan's naturalist creed, "The Cosmos is all that ever is, was or will be." If one can't affirm God, then one can't
affirm his absence.

As for the peer-review question, the record's better than you think, especially if one includes the works on cosmological design and philosophy of science, which have been around for several decades now. Nevertheless, I agree that ID advocates—especially in the biological sciences—have much more work to do.

Doug, I've learned much from your work over the years, and continue to be challenged and enlightened by your scholarship. So, for me, this was a true privilege to engage someone for whom I have much respect. Thank you.

Laycock: 9/30/05, 10:53 PM
I said from the beginning that "Government can take no position on any question concerning a supernatural entity (including an Intelligent Designer of a universe), because the preservation of religious liberty requires government to stay out of religious questions." So of course I agree that public schools cannot deny the existence of a Designer.
Neither can they argue for a Designer.

I also agree that when Carl Sagan says that "The Cosmos is all that ever is, was or will be," he is no longer speaking as a scientist; he has crossed over into a claim about religion. What he can say as a scientist is that we have no naturalistic evidence that anything but the Cosmos has ever existed or ever will. But claims about a supernatural world that does not manifest itself in naturalistic ways are outside the scope of science.

I have not shifted position on the parts of intelligent
design that could be presented as science. What I said on Wednesday was that ID's "criticism of evolution could be stated in purely scientific terms and methods" and published in peer-reviewed journals, and that if this led to gaps in scientific explanations, those gaps could be taught
in public schools. There is nothing unusual about things science doesn't know. Science doesn't know what happened before the Big Bang or how to unify all the fundamental forces into a single unified field theory, to take two important examples that are properly taught in the public schools.

If the scientific community began to doubt science's account
of evolution, that explanatory gap could be taught in public schools. But the scientific community as a whole does not believe that there is such a gap. If there were, the science teacher should say is that scientists don't know a good scientific explanation. Whether to fill that gap with a Designer would still be outside the scope of science.

Frank, you say I have set up a naturalistic model of science
that is itself nonfalsifiable. But it is easy to imagine how people might lose confidence in the naturalistic model of science. If science developed lots of gaps in its ability to explain natural phenomena, if science quit producing new knowledge that works, people would lose confidence in science. But this isn't happening, because the naturalistic model of science has worked so well for several centuries.

For now, and for the foreseeable future, the claim of an
Intelligent Designer remains a constitutionally protected religious theory. It is misleading to claim that it has become a scientific theory.

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