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The Dover Intelligent Design Decision, Part I: Of Motive, Effect, and History
By: Albert Alschuler
Albert Alschuler
December 21, 2005


Kitzmiller v. Dover Area School District forbids a local school board “from requiring teachers to refer to a religious, alternative theory known as ID.” The first amendment makes intelligent design unmentionable in the classroom. While professing to offer no opinion concerning the truth of intelligent design, the court consistently reveals its contempt for this theory.

Most of the Dover opinion says in effect to the proponents of intelligent design, “We know who you are. You’re Bible-thumpers.” The opinion begins, “The religious movement known as Fundamentalism began in nineteenth century America as a response to social changes, new religious thought, and Darwinism. Religiously motivated groups pushed state legislatures to adopt laws prohibiting public schools from teaching evolution, culminating in the Scopes ‘monkey trial’ of 1925.” When the Fundamentalists (the court often capitalizes the word) found themselves unable to ban Darwinism, they championed “balanced treatment,” then “creation science,” and finally “intelligent design.” According to the court, the agenda never changed. Dover is simply Scopes trial redux. The proponents of intelligent design are guilty by association, and today’s yahoos are merely yesterday’s reincarnated.

If fundamentalism still means what it meant in the early twentieth century, however -- accepting the Bible as literal truth -- the champions of intelligent design are not fundamentalists. They uniformly disclaim reliance on the Book and focus only on where the biological evidence leads. The court’s response – “well, that’s what they say, but we know what they mean” – is uncivil, an illustration of the dismissive and contemptuous treatment that characterizes much contemporary discourse. Once we know who you are, we need not listen. We’ve heard it all already.

Many evolutionary biologists undoubtedly regard religion as akin to sorcery and believe that the world would be a better place without it, but that’s not the argument most of them make publicly against teaching intelligent design. The argument they do make deserves to be taken at face value, and the proponents of intelligent design deserve the same respect. Freedom from psychoanalysis is a basic courtesy.

The court offers convincing evidence that some members the Dover school board would have been delighted to promote their old time religion in the classroom. These board members apparently accepted intelligent design as a compromise, the nearest they could come to their objective within the law. Does that make any mention of intelligent design unconstitutional? It seems odd to characterize the desire to go far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens. The Dover opinion appears to say that the forbidden preference taints whatever the board may do, and if the public can discern the board’s improper desire, any action it takes also has an unconstitutional effect. If board members would like to teach Genesis as the literal truth, the board may not direct teachers even to mention the anamolies in the theory of natural selection that the court itself recognizes. The court seems to declare, "Because we find that you would like something you can't have, we hold that you can't have anything."

A later post will consider the second major theme of the Dover Area School District opinion – that intelligent design is “religion,” not “science.”

Albert Alschuler is the Julius Kreeger Professor of Law and Criminology at University of Chicago Law School.


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