New England Journal of Medicine Traipses Into the Kitzmiller Decision

In a New England Journal of Medicine article entitled “Intelligent Judging — Evolution in the Classroom and the Courtroom,” George J. Annas lavishes the Kitzmiller decision with praise. Ironically, Mr. Annas lauds some statements by Judge Jones which others have viewed as undermining the Judge’s credibility.

For instance, Mr. Annas applauds the following proclamation of judicial superiority by Judge Jones:

After a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentation, the court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area [and] . . . 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.

Judge John E. Jones III, quoted in George J. Annas, “Intelligent Judging — Evolution in the Classroom and the Courtroom,” New England Journal of Medicine, Volume 354:2277-2281 (May 25, 2006), emphasis added.

This is one of my favorite quotes from the Kitzmiller ruling—but probably for different reasons than those of Mr. Annas. The definition of “traipse” is “To walk about idly or intrusively.” (American Heritage Dictionary, 2nd college ed.) This is exactly what Judge Jones did in the Kitzmiller decision, which is why the book I co-authored on the case is titled Traipsing Into Evolution. Many legal scholars with whom I have spoken have similarly found this statement by Judge Jones to be an incredible overreach for a district court judge.

The reason America has a tiered federal court system is so multiple courts can examine the same issue, just in case one court incorrectly decides some matter of law. Lower courts often arrive at opposite conclusions on complex legal issues, and then a panel of more judges ruling from a higher court must sort them out, and hopefully “get it right.” But according to Judge Jones, his Kitzmiller decision should settle the issue of whether ID is science for all courts.

Judge Jones is trying to behave like the U.S. Supreme Court—the highest court in the land—and the only one that is supposed to decide an issue for all other courts. Jones’ statement that “a subsequent trial” need not attempt to address these issues—because he apparently figured them all out—strains the overall credibility of his ruling and would not be appreciated by other judges who feel themselves judicially competent to investigate these issues and rule on them.

As will be documented over a series of this, and two upcoming posts, the facts also strain the credibility of the Kitzmiller ruling and many of the questionable claims repeated in the New England Journal of Medicine.

Mr. Annas goes on to praise Judge Jones for his findings that ID isn’t science. The problem is that each finding was based upon non-existent facts or irrelevant arguments. Mr. Annas recapitulates the ruling:

Judge Jones summarized the expert testimony in more than 25 pages, concluding that it demonstrated to him that intelligent design is “an interesting theological argument” but is not science for many reasons: it invokes a supernatural cause; it relies on the same flawed arguments as creationism; its attacks on evolution have been refuted by the scientific community; it has failed to gain acceptance in the scientific community; it has not generated any peer-reviewed publications; and it has not been the subject of testing or research.

That all sounds fine, but unfortunately each of these statements is either patently untrue or largely irrelevant to a determination of whether ID is science.

[1] ID requires the supernatural?

Judge Jones asserted that ID requires supernatural causation. In doing so, he ignored extensive evidence showing precisely the opposite. ID does not claim science can detect supernatural causes. Instead, it claims that science can detect intelligent causes. Whether the intelligent causes detected by science are inside or outside of nature is beyond the scope of ID as a scientific theory. (See this link for the extensive documentation on this point given to Judge Jones).

Pro-ID biologist Scott Minnich addressed this issue in a statement during the trial which Judge Jones apparently chose to ignore:

Q. Do you have an opinion as to whether intelligent design requires the action of a supernatural creator?

A. I do.

Q. What is that opinion?

A. It does not.


Q. Does intelligent design require the action of a supernatural creator acting outside the laws of nature?

A. No.

(Testimony of Scott Minnich, at pp. 45-46, 135, Kitzmiller v. Dover (M.D. Pa., Nov. 3, 2005).)

One would think that Judge Jones would permit the proponents of intelligent design to define their own theory. Rather, Judge Jones let evolutionist Ken Miller define ID. Miller misconstrued ID as follows:

intelligent design is somewhat less scientific in terms of the prediction it makes than scientific creationism, but it shares that core belief, and that is that design can be attributed to a supernatural designer or creator.

(Testimony of Kenneth R. Miller, at p. 46, Kitzmiller v. Dover (M.D. Pa., Sept. 26, 2005).)

Miller, a critic, doesn’t speak for ID. This is especially true when the literature by ID theorists has made it clear that ID is not a supernatural explanation. Why didn’t Judge Jones let ID proponents define their own position rather than simply accepting the straw-man definition put forth by the Darwinists?

[2] ID using Failed Arguments of Creationism?

What are these “failed arguments of creationism” that Mr. Annas refers to? What Judge Jones actually said is that ID employs “the same flawed and illogical contrived dualism that doomed creation science in the 1980’s.” What Judge Jones means is that ID is simply a negative argument against evolution, which supposedly says that evidence against evolution therefore counts in favor of ID. Again, Judge Jones simply adopts Ken Miller’s false version of ID, which says it’s just a negative argument against evolution:

It is what a philosopher might call the argument from ignorance, which is to say that, because we don’t understand something, we assume we never will, and therefore we can invoke a cause outside of nature, a supernatural creator or supernatural designer.


The only thing that they have left is an untestable assertion, and that assertion is that the living things on this planet are too complex to have been explained by evolution and, therefore, they must be the work of a supernatural designer creator.

(Testimony of Kenneth R. Miller, at pp. 36, 46, Kitzmiller v. Dover (M.D. Pa., Setp. 26, 2005), emphasis added.)

I emphasized the “therefores” to show that Ken Miller misconstrues ID to claim that the inference to design is directly dependent upon a falsification of evolution. As we all know, evidence against one theory does not therefore, in-and-of-itself constitute evidence for another theory. There has to be a positive argument for the scientific explanation in question. ID proponents recognize this fact and they have defined their theory in a completely different way than Ken Miller defines it.

Judge Jones and Ken Miller ignore the fact that ID is based upon a positive argument that is not a mere “refutation of Darwinism, therefore ID.” Consider the positive explanation for design that expert witness Scott Minnich wrote with Stephen Meyer:

“Molecular machines display a key signature or hallmark of design, namely, irreducible complexity. In all irreducibly complex systems in which the cause of the system is known by experience or observation, intelligent design or engineering played a role the origin of the system. Given that neither standard neo-Darwinism, nor co-option has adequately accounted for the origin of these machines, or the appearance of design that they manifest, one might now consider the design hypothesis as the best explanation for the origin of irreducibly complex systems in living organisms. That we have encountered systems that tax our own capacities as design engineers, justifiably lead us to question whether these systems are the product of undirected, un-purposed, chance and necessity. Indeed, in any other context we would immediately recognize such systems as the product of very intelligent engineering. Although some may argue this is a merely an argument from ignorance, we regard it as an inference to the best explanation [21, 22], given what we know about the powers of intelligent as opposed to strictly natural or material causes. We know that intelligent designers can and do produce irreducibly complex systems. We find such systems within living organisms.

(Scott A. Minnich and Stephen C. Meyer, “Genetic Analysis of coordinate flagellar and type III regulatory circuits in pathogenic bacteria.”)

According to Minnich and Meyer, ID is not “an argument from ignorance”, but is rather based upon “what we know about the powers of intelligent [causes].” As Minnich and Meyer write, “In all irreducibly complex systems in which the cause of the system is known by experience or observation, intelligent design or engineering played a role the origin of the system.” Thus, we have a positive argument for design that is not merely based upon the refutation of evolution, and is not an argument from ignorance. There is no question that Ken Miller is misconstruing the way ID proponents have defined their theory. Unfortunately, Judge Jones bought Ken Miller’s misconstruals of ID.

Again, why didn’t Judge Jones let the ID proponents define their own theory?

[3] ID is refuted by the scientific community?

The evidence upon which Judge Jones relied to claim that ID has been “refuted by the scientific community” is also highly questionable: consider Ken Miller’s false definition of irreducible complexity and the straw-man tests he gave that never refuted it. The phrase “refuted by the scientific community” is also condescending because many ID proponents are well-credentialed scientists employed by the same university science departments as Darwinists. To claim that the entire scientific community rejects and has “refuted” ID is to falsely imply that the scientific community includes no ID proponents. Michael Behe has also responded to the scientific claims.

[4] ID has failed to gain acceptance in the scientific community?

The central holding of the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), was the rejection of the “Frye Rule” requiring “general acceptance” for admissibility of scientific evidence under the Federal Rules of Evidence (FRE):

Nothing in the text of this Rule establishes “general acceptance” as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a “general acceptance” standard. The drafting history makes no mention of Frye, and a rigid “general acceptance” requirement would be at odds with the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony. The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts. Given the Rules’ permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention “general acceptance,” the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made “general acceptance” the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.

(Daubert v. Merrell Dow Pharmaceuticals at 588-589, internal citations and quotations omitted for ease of reading)

The Court did note that “general acceptance” can be used as one factor to consider in a determination of whether something is admissible as scientific evidence under the FRE, but it is not the dispositive factor. (Of course the Kitzmiller case was not dealing with questions of admissibility under the FRE, but it is relevant to note that the even the Supreme Court has nonetheless observed, in conjunction with rulings about the FRE, that something can be legitimate science even if it doesn’t enjoy widespread acceptance.)

Since when does general acceptance determine if an idea is science? As Stephen Jay Gould co-wrote to the U.S. Supreme Court in the Daubert case, unpublished or minority viewpoints should not be excluded from being science because that would stifle scientific progress:

Judgments based on scientific evidence, whether made in a laboratory or a courtroom, are undermined by a categorical refusal even to consider research or views that contradict someone’s notion of the prevailing “consensus” of scientific opinion. . . . Automatically rejecting dissenting views that challenge the conventional wisdom is a dangerous fallacy, for almost every generally accepted view was once deemed eccentric or heretical. Perpetuating the reign of a supposed scientific orthodoxy in this way, whether in a research laboratory or in a courtroom, is profoundly inimical to the search for truth. A categorical refusal even to examine and consider scientific evidence that conflicts with some ill-defined notion of majority opinion is a recipe for error in any forum. . . . The quality of a scientific approach or opinion depends on the strength of its factual premises and on the depth and consistency of its reasoning, not on its appearance in a particular journal or on its popularity among other scientists.

(Brief Amici Curiae of Ronald Bayer, Stephen Jay Gould, Gerald Holton, Peter Infante, Philip Landrigan, Everett Mendelsohn, Robert Morris, Herbert Needleman, Dorothy Nelkin, William Nicholson, Kathleen Joy Propert, and David Rosner, in support of petitioners, Daubert, 509 U.S. 579 (1993) (No. 92-102).)

Unless Judge Jones wanted to be a science stopper, he should have not have rejected Gould’s argument that dissenting or even unpopular views can most certainly be science, and even be very valuable to science.

[5] ID has not generated any peer-reviewed publications?

Various peer-reviewed articles which support ID were documented to Judge Jones. Yet he claimed that ID has not generated any peer-reviewed publications. This is a simple question that Judge Jones got flat wrong.

[6] ID has not been the subject of testing or research?

The best way to refute this claim is to let Scott Minnich speak for himself. Minnich is a microbiologist who testified as follows on the next-to-last-day of the trial about his own research and experimentation into intelligent design:

Q. Do you know employ principles and concepts from intelligent design in your work?

A. I do.

Q. And I’d like for you to explain that further. I know you’re prepared several slides to do that.


A. Sure. All right. I work on the bacterial flagellum, understanding the function of the bacterial flagellum for example by exposing cells to mutagenic compounds or agents, and then scoring for cells that have attenuated or lost motility. This is our phenotype. The cells can swim or they can’t. We mutagenize the cells, if we hit a gene that’s involved in function of the flagellum, they can’t swim, which is a scorable phenotype that we use. Reverse engineering is then employed to identify all these genes. We couple this with biochemistry to essentially rebuild the structure and understand what the function of each individual part is. Summary, it is the process more akin to design that propelled biology from a mere descriptive science to an experimental science in terms of employing these techniques.

Q. Do you have some examples employing this particular concept of the flagella?

A. I do, in the next slide. Hopefully this will cut to the chase and show you what we’re talking about. This is an organism that my students and I work on. This is a petri dish about 15 millimeters size, filled with this soft auger food source for the organism. It’s soft in the sense the organisms can swim in it, but it has some rigidity that they just don’t slosh around. Now, each one of these areas showing growth were inoculated with a toothpick of cells, the wild type parent here. So this is yersinia enterocolitica, a good pathogen, double bucket disease if you ingest it.

Q. That’s the center?

A. Yeah, that’s the center, okay? So it can swim. So it was inoculated right here, and over about twelve hours it’s radiated out from that point of inoculant. Here is this same derived from that same parental clone, but we have a transposon, a jumping gene inserted into a rod protein, part of the drive shaft for the flagellum. It can’t swim. It’s stuck, all right? This one is a mutation in the U joint. Same phenotype. So we collect cells that have been mutagenized, we stick them in soft auger, we can screen a couple of thousand very easily with a few undergraduates, you know, in a day and look for whether or not they can swim.

Q. I’m sorry, just so we’re clear on the record, the two you’re talking about on the bottom left, the first one was the bottom left and the second one was the bottom right?

A. Right.

Q. Where you took away a portion of the flagella?

A. We have a mutation in a drive shaft protein or the U joint, and they can’t swim. Now, to confirm that that’s the only part that we’ve affected, you know, is that we can identify this mutation, clone the gene from the wild type and reintroduce it by mechanism of genetic complementation. So this is, these cells up here are derived from this mutant where we have complemented with a good copy of the gene. One mutation, one part knock out, it can’t swim. Put that single gene back in we restore motility. Same thing over here. We put, knock out one part, put a good copy of the gene back in, and they can swim. By definition the system is irreducibly complex. We’ve done that with all 35 components of the flagellum, and we get the same effect.

(Testimony of Scott Minnich, at pp. 99-108, Kitzmiller v. Dover (M.D. Pa., Nov. 3, 2005).)

This testimony from Scott Minnich shows slides documenting his own research experiments which tested intelligent design and found that the flagellum is irreducibly complex. Yet Judge Jones had to ignore all of this testimony to claim that “ID has not been the subject of testing or research.” Was that finding supported by the evidence?

None of reasons given by Judge Jones for why ID is not science are both true and relevant.

Creationism and Early Drafts of Pandas

Mr. Annas also rehashes arguments made about certain pre-publication drafts of the textbook Of Pandas and People, which he faults for using the term “creationism.” Given that this term was never used in the published version of the book, the legal relevance of the point raised by Mr. Annas is murky at best. After all, the book used in the Dover school district was the published version of Pandas, not a pre-publication draft. What is the supposed relevance of a draft manuscript that students never saw let alone read? Even if the pre-publication drafts of Pandas are somehow relevant, they don’t show what Mr. Annas thinks.

a. Early Drafts of Pandas Actually Rejected “Creationism” as Defined by the Courts

When certain pre-publication drafts of Pandas used terms such as “creation” and “creationist,” they used them in a way that rejected “creationism” as defined by the courts and popular culture. In Edwards v. Aguillard, the U.S. Supreme Court declared creationism to be a religious viewpoint because it required a “supernatural creator”:

The legislative history therefore reveals that the term “creation science,” as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind. (Edwards v. Aguillard, 482 U.S. 578, 591-592, emphasis added)

Thus, what the Supreme Court found was religion and therefore unconstitutional was not the word “creationism,” but the teaching that a “supernatural creator” was responsible for life. “Creation science” was how the Louisiana Legislature had used to describe that religious concept.

Yet pre-publication drafts of Pandas juxtaposed the word “creation” with statements to the exact opposite effect, noting that science cannot scientifically detect a supernatural creator. Consider these important excerpts from pre-publication drafts of Pandas making it clear that from the beginning, their project did not advocate what the courts have defined as “creationism”:

In each of these excerpts from pre-Edwards v. Aguillard drafts of Pandas, it is clear that the idea of “creation” discussed in pre-publication drafts of Pandas was specifically NOT trying to postulate a supernatural creator! The concepts advanced by even pre-publication, pre-Edwards drafts of Pandas were sharply different from what the courts have defined as “creationism.” These early drafts were not trying to study the supernatural.

To solidify this point, consider the deposition testimony of Charles Thaxton as to why he started to use the term intelligent design in the Pandas book:

I wasn’t comfortable with the typical vocabulary that for the most part creationists were using because it didn’t express what I was trying to do. They were wanting to bring God into the discussion, and I was wanting to stay within the empirical domain and do what you can do legitimately there.

(Deposition of Charles Thaxton, at pp. 52-53 (M.D. Pa., July 19, 2005).)

Similarly, a 1990 post-publication rebuttal to a critic, written by the Pandas publisher explains:

As a consequence, yes, we are careful not to identify the intelligent cause behind the biological phenomena presented, but not for purposes of stealth, but rather precisely because we think that this is a religious conclusion.

Thus, the limits of what intelligent design can tell us stem not from legal strategies but from an honest effort to limit statements to scientific claims that can be made based upon the empirical data. ID is about respecting the limits of the scientific data—not hiding religion for legal purposes. In other words, even in its pre-publication form Pandas offered a theory that was conceptually distinct from what the courts have defined as “creationism.”

b. “Abrupt” Appearance Language Does Not Make ID “Creationism”

According to Mr. Annas, Judge Jones also ruled that ” (1) the definition for creation science in the early drafts is identical to the definition of ID.” But was Judge Jones right to assert that this makes ID unconstitutional?

To my knowledge, there is only one instance where a definition given for “creationism” in pre-publication drafts was the same as the definition given for ID in the published version. This final definition reads that intelligent design means “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.” Yet this language of “abrupt” appearance of fully-formed biological structures is simply a common observation about the fossil record, not a religious claim. Such claims about abrupt appearance are echoed by many prominent evolutionists, including Stephen Jay Gould and Ernst Mayr:

  • “The fossil record with its abrupt transitions offers no support for gradual change . . . transitions between major groups are characteristically abrupt.” (Stephen Jay Gould, The Return of Hopeful Monsters, 86 Natural History, pp. 22-24 (June-July, 1977), emphasis added.)
  • “Anything truly novel always seemed to appear quite abruptly in the fossil record.” (Ernst Mayr, One Long Argument: Charles Darwin and the Genesis of Modern Evolutionary Thought, p. 138 (1991), emphasis added.)

Indeed, the observation that types of organisms appear with their body plans “intact” or “fully formed” is also expounded in an pro-evolution college text, published the same year as the Pandas textbooks used in Dover:

Most of the animal phyla that are represented in the fossil record first appear, ‘fully formed’ and identifiable as to their phylum in the Cambrian some 550 million years ago. These include such advanced anatomically complex types as trilobites, echinoderms, brachiopods, and mollusks. . . . The fossil record is therefore of no help with respect to the origin and early diversification of the various animal phyla . . . (R.S.K. Barnes, et al., The Invertebrates: A New Synthesis, pp. 10-11 (2nd ed. Blackwell Scientific, 1993) (emphasis added).

That the Pandas textbook would dare attribute these common observations of the fossil record to “an intelligent agency” should not render intelligent design the equivalent of “creationism” any more than Gould’s observations should render him or his theory of punctuated equilibrium “creationist.”

It is also worth reiterating that in Edwards v. Aguillard, the U.S. Supreme Court found creationism was religion because it required the “supernatural,” and notions of “abrupt appearance” had no impact upon the majority’s constitutional analysis. Perhaps this was because of the number of mainstream evolutionist paleontologists who recognize the historical fact of the abrupt appearance of “fully-formed” complex biological features in the history of life.

ID was formulated in its present form—an empirically based argument that would not stray into the supernatural—before the Edwards case was decided. Thus, even before Edwards v. Aguillard, ID lacked the very quality that caused creationism to be declared unconstitutional: it did not postulate a “supernatural creator.” The similar definition between creationism and ID in pre-publication and published drafts of is based upon common scientific observations of “abrupt appearance” that are completely irrelevant to constitutional analysis under the Edwards v. Aguillard majority ruling. Judge Jones got it wrong. It is most unfortunate that these facts were left out of this article explaining the Kitzmiller decision to medical doctors.

Revisionist History about Discovery’s Involvement in Dover

Finally, Mr. Annas claims that it was Discovery Institute who pushed Dover to pass its policy:

The Discovery Institute established its Center for Science and Culture to challenge Darwin’s theory and promote the inclusion of intelligent design in school curricula nationwide.


To determine the purpose of the requirement of teaching intelligent design, the judge examined the statements and actions of the members of the school board, which showed that the members who sponsored the new rule had religious motivations and worked with the Discovery Institute to promote the institute’s agenda of intelligent design, including arranging for science teachers to watch a Discovery Institute film entitled Icons of Evolution.

(George J. Annas, “Intelligent Judging — Evolution in the Classroom and the Courtroom,” New England Journal of Medicine, Volume 354:2277-2281 (May 25, 2006).)

If Mr. Annas is going to make this claim, it would be accurate to point out, as we did to Judge Jones, that Discovery opposed Dover’s attempt to mandate ID. Indeed, Seth Cooper, a Discovery Institute attorney at the time, met with Dover school board members specifically to urge them not to mandate ID (see Statement by Seth L. Cooper Concerning Discovery Institute and the Decision in Kitzmiller v. Dover Area School Board Intelligent Design Case for details). Rather, Discovery encouraged Dover to follow the same policy has long suggested everywhere else: mandate teaching about scientific strengths and weaknesses of evolution, but don’t mandate the teaching of alternative theories like intelligent design.

So if Discovery was trying to dissuade Dover from mandating ID, then why would it have encouraged people in Dover to watch the Icons video? The answer is simple for those who have watched the video: Icons of Evolution is not about intelligent design. The Icons video, like the book, is about pure critique of evolution without talking about replacement theories like intelligent design. The video covers topics like Haeckel’s embryos and Darwin’s Tree of Life, and how they don’t support Neo-Darwinism. The documentary fits perfectly with a critical analysis of evolution policy, and says nothing about intelligent design.


Mr. Annas claims that “critical analysis” policies are based upon a “controversy … largely manufactured by the proponents of creationism and intelligent design.” If there’s no controversy, then why have over 500 scientists signed a public statement of dissent from Neo-Darwinism? Why does the peer-reviewed literature contain much reason for the critique of Neo-Darwinism—including some criticisms that cut to the core of the theory, such as the ability of mutation and selection to produce the complexity of life? Since Mr. Annas’s article was published in a leading medical journal, it seems relevent to ask, “if there’s no controversy then why do 34% – 60% of doctors agree that there was a guiding intelligence behind life“? Moreover, medical doctors are also beginning to sign a new list of doctors dissenting from Darwinism.

That sounds just like a scientific controversy to me, and it is most unfortunate that readers of the prestigious New England Journal of Medicine are not being given the full set of facts regarding the accuracy of the Kitzmiller ruling.

Casey Luskin

Associate Director and Senior Fellow, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.