To be fair, the ACLU did present testimony supporting the plaintiffs' claim that the school board had acted for religious motives in adopting the policy requiring that a four-paragraph statement be read.
If Jones had stopped there, few would have quarreled with his decision. However, he went on to address the question of whether intelligent design is science. He did so based on his belief that "no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we 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."
Relying almost exclusively on the evidence presented by the ACLU's witnesses, Jones held that ID is not science. He claimed that the witnesses established that ID relies on "supernatural" explanations, that it was untestable, and that it had produced no peer-reviewed literature. Each of these claims was carefully rebutted by the briefs submitted by amici, including the Discovery Institute and a large group of scientists who urged the court not to try to settle the question of the definition of science and the scientific status of intelligent design.
Judge Jones also reviewed the conflicting views of irreducible complexity presented by Michael Behe and Ken Miller. Whereas the Cambridge University Press thought the issue sufficiently provocative that it recently published a volume entitled "Debating Design," in which both scientists presented their views, Judge Jones took it upon himself to declare a winner in the debate.
Perhaps most startling and ironic about the case was Judge Jones' adoption of the testimony of John Haught, a theologian who testified for the ACLU. Haught gave his opinion that ID is religion, not science, but he quickly assured the court that there is no incompatibility between evolution and religion. Judge Jones picked up on this assurance and at the end of his opinion stated, "Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator."
This is like a judge assuring us that it is "utterly false" that Judaism is inconsistent with eating pork. "After all," a judge might say, "A distinguished rabbi testified that true Judaism no longer emphasizes dietary laws, but focuses on the ethical duties we owe to one another." Alarm bells should go off when a judge believes that he can resolve hotly contested issues about what someone's religion does or does not permit. But then again, after having taken upon himself the task of deciding what constitutes good science, Judge Jones' willingness to decide theological questions should come as no surprise.
Nonetheless, Judge Jones' pronouncements are not likely to be reviewed by an appellate court, because the newly elected Dover school board campaigned on their opposition to the contested policy, and an appeal is unlikely. But by everyone's reckoning the debate is far from over. Recently a federal judge's rejection of a textbook in Cobb County, Georgia was sharply questioned by a federal appeals court panel when the case was argued, and a federal judge in California denied a motion to dismiss a lawsuit challenging a pro-Darwin website.
Across the country, legislatures and state boards of education are taking up the question of whether and how to "teach the controversy," and they not likely to find Judge Jones' analysis persuasive. As policies emerge that are more in keeping with the American spirit of open inquiry, the Kitzmiller case will recede as an interesting and ironic footnote to the history of this scientific and cultural debate.
David DeWolf is a professor of law at Gonzaga University and a Senior Fellow at Discovery Institute’s Center for Science & Culture.