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ID is Constitutional and has Educational and Legal Merit

Published at Opposing Views

[Editor’s note: This article was posted as part of a series of articles both for and against ID at]

“The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous both to science and to freedom of religion”1

Jay D. Wexler, Anti-ID legal scholar at Professor of Law, Boston University Law School

ID has legal and educational merit because it is a bona fide scientific theory that can enhance the effectiveness of science instruction.

A Preliminary Point

Before explaining the legal and educational merit of teaching intelligent design (ID), the following point must be made clear: While I strongly believe that ID should be considered constitutional to present as a scientific alternative to evolution, I do not support mandating ID into public school curricula.

As Discovery Institute states on its education policy page, “As a matter of public policy, Discovery Institute opposes any effort require the teaching of intelligent design by school districts or state boards of education. Attempts to mandate teaching about intelligent design only politicize the theory and will hinder fair and open discussion of the merits of the theory among scholars and within the scientific community. Furthermore, most teachers at the present time do not know enough about intelligent design to teach about it accurately and objectively.”2

In the wake of the Kitzmiller v. Dover lawsuit, there has been an intense spike in the persecution of teachers, students, and faculty who support ID. The ID movement’s priority is to see ID advance through scientific research, and in today’s hostile political climate, school districts that require ID do more to harm ID than to help it. The long-term success of ID depends on its scientists having opportunities to produce good scientific research and scholarship, and not being constantly dragged before courtrooms or school boards to defend ill-conceived educational policies.

Thus, in arguing that ID has legal and educational merit, I am not therefore arguing that the best thing for the scientific progress of ID is to force it into public schools. Far from it. Nonetheless, I do think that ID should be considered perfectly constitutional and that teaching students about the scientific debate between ID and evolution can have great educational benefits.

Has ID Been Banned from Public Schools by the Courts?

No, ID has not been banned from U.S. public schools by the courts. Contrary to popular belief, the U.S. Supreme Court has never addressed the teaching of intelligent design. In fact, the only case which has ever squarely addressed the teaching of intelligent design was a federal trial court in the middle district of Pennsylvania—a ruling that applies only to the parties in that case and does not apply to the rest of the country. (This 2005 Kitzmiller v. Dover case will be discussed extensively below.)

The arguments for the constitutionality of teaching ID are remarkably simple—on the surface. In the 1987 case Edwards v. Aguillard, the Supreme Court sanctioned the teaching of scientific alternatives to evolution provided that they were taught under legitimate secular purposes:

“[T]eaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.”3

However, Edwards also struck down the teaching of creationism because creationism was a religious belief because it referred to a “supernatural creator.”4 The question of whether it is constitutional to teach ID in public school science classrooms thus turns on whether ID is a scientific viewpoint, or whether it refers to a “supernatural creator” and is thereby a religious viewpoint under the Edwards ruling.

In my first opening statement (“Intelligent design (ID) has scientific merit because it uses the scientific method to make its claims and infers design by testing its positive predictions“), I argued that ID is a bona fide scientific theory because it makes its claims using the scientific method. In my third opening statement (“Any larger philosophical implications of intelligent design, or any religious motives, beliefs, and affiliations of ID proponents, do not disqualify ID from having scientific merit“), I argued that the religious beliefs, motives, and affiliations of ID proponents, and any larger philosophical implications of ID, do not disqualify it from being scientific. In the fourth opening statement (“ID Does Not Address Religious Claims About the Supernatural“), I explained how ID limits its claims to what can be learned from the empirical domain and does not make unscientific appeals to the supernatural that might violate methodological naturalism. I also argued that ID is distinct from creationism because it does not require a “supernatural creator” and instead only refers to intelligent causes.

What, then, stands in the way of considering intelligent design as a scientific theory?

Legally assessing whether ID science or religion is complicated by the fact that courts have not agreed upon a consensus definition of science or religion. Indeed, the U.S. Supreme Court has studiously — and perhaps wisely — avoided giving blanket definitions for those categories.

One of the few clear rules in this legal field is the U.S. Supreme Court’s Edwards holding that creationism is a religious viewpoint because it postulates a “supernatural creator.” Thus, it is unsurprising that one of the most convenient allegations made against ID is that it is simply repackaged version of creationism that invokes the supernatural, was designed to circumvent the U.S. Supreme Court’s ruling in the 1987 case Edwards v. Aguillard. As I argued in my fourth opening statement (“ID Does Not Address Religious Claims About the Supernatural“), these claims are based upon a twisting of ID and a re-writing of ID’s history. In my fourth opening statement (“ID Does Not Address Religious Claims About the Supernatural“), I laid out the evidence documenting that ID does not try to address religious questions about the supernatural, and is distinct from creationism.

But is ID science? In fact, leading philosophers of science, such as Larry Laudan, have argued that, “[T]here is no demarcation line between science and nonscience, or between science and pseudo-science, which would win assent from a majority of philosophers.”5 Because there is no consensus definition of science, lower courts have at times adopted controversial definitions of “science.” In a twist of fallacious logic, these courts tend to presume that if an idea fails that particular court’s favored definition of science, then that the viewpoint must therefore be religion.6 Such arguments ignore the fact that many types of claims — such as historical or philosophical claims — are not scientific but are also not religious.

In the 2005 Kitzmiller v. Dover case, Judge Jones employed this reasoning after finding that ID failed a 6-part test he adopted for defining science:

“[A] ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; [B] the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980’s; and [C] ID’s negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that [D] ID has failed to gain acceptance in the scientific community, [E] it has not generated peer-reviewed publications, nor [F] has it been the subject of testing and research.”7

After conducting his analysis, Judge Jones fallacious claimed that “since ID is not science, the conclusion is inescapable that the only real effect of the ID Policy is the advancement of religion.”8 According to Judge Jones, since the Lemon test requires that the predominant purpose behind a law cannot be religious, and primary effect of the law must not advance religion (the effect “prong”), the Dover Area School District’s ID policy was unconstitutional.

Each of the six criteria Judge Jones used to claim that ID is not science was either incorrect or irrelevant to his analysis. In fact, since the Supreme Court held in Edwards that “[i]f the law was enacted for the purpose of endorsing religion, no consideration of [Lemon’s] second or third criteria is necessary,”8 arguably, Judge Jones’ entire analysis of whether ID was science was irrelevant to his ruling once that he found that the Dover Area School Board had unconstitutional religious motives.

My opening statements have already rebutted some of Judge Jones’ six reasons why ID is not science, but I will review the arguments here:10

A. ID does not require supernatural causation and the fact that it might permit it is irrelevant.

As I explained in my fourth opening statement (“ID Does Not Address Religious Claims About the Supernatural“), ID does not invoke supernatural causation, and the fact that ID permits it does not cause it to violate methodological naturalism. In fact, ID meets the requirements of predictability and reliability laid down by methodological naturalism. Judge Jones’ argument that ID is not science because it “requires supernatural creation”11 was predicated upon a false version of intelligent design that directly contradicted descriptions of ID given by pro-ID expert witnesses in his own courtroom.

B. The arguments for ID from irreducible complexity are not merely negative arguments against evolution and thus ID does not use a “contrived dualism.”

In my first opening statement (“Intelligent design (ID) has scientific merit because it uses the scientific method to make its claims and infers design by testing its positive predictions“), I explained that ID is not a merely negative argument against evolution but makes positive arguments. This means that ID does not employ the “flawed and illogical contrived dualism” when making its case, for irreducible complexity is both a positive argument for design, and a negative argument against evolution. As Michael Behe writes:

“[I]rreducibly complex systems such as mousetraps and flagella serve both as negative arguments against gradualistic explanations like Darwin’s and as positive arguments for design. The negative argument is that such interactive systems resist explanation by the tiny steps that a Darwinian path would be expected to take. The positive argument is that their parts appear arranged to serve a purpose, which is exactly how we detect design.”12

Irreducible complexity is a positive argument for design because we understand that forward-thinking intelligent agents produce such a complex, purposeful arrangement of parts. It is a negative argument against evolution because neo-Darwinian pathways cannot produce structures where large leaps in complexity are required to maintain functionality. This is not a “contrived dualism.” It is an actual, logical dualism justified by our empirically-based understanding of the respective causal powers of ID and natural selection.

C. Judge Jones’ arguments that ID is unscientific because it has been “refuted by the scientific community” are both false and irrelevant.

University of Kentucky philosopher Bradley Monton observes that being wrong does not necessarily make an idea unscientific.13 Newtonian physics has been refuted and superseded by Einstein’s theory of relativity. But that does not make Newton’s laws of mechanics “unscientific,” and indeed, physics classes still invariably teach them alongside Einstein’s models in schools.14 Here it is Judge Jones who proposes the false dichotomy: he wrongly asserts that if a theory is not correct, it cannot be science. But something can be wrong and still be science.

Even if Judge Jones believed that ID is false, it was not his responsibility to investigate the scientific truth or falsity of ID. Judge Jones should have remembered that “the wisdom of an educational policy or its efficiency from an educational point of view is not germane to the constitutional issue of whether that policy violates the establishment clause.”15 If courts really mean it when they say that “[s]tates and local school boards are generally afforded considerable discretion in operating public schools,”16 then what matters is that the school board sincerely believed that ID has scientific merit, not whether a federal judge is convinced of its ultimate scientific truth.

There are good reasons why the truth or falsity of ID’s scientific claims is irrelevant to a judicial determination of whether ID violates the Establishment Clause. Our form of government requires a separation of powers. During lawsuits alleging violations of the Establishment Clause in public school curricula, courts are allowed to determine if the curriculum establishes religion, but that’s it. Yet Judge Jones found that ID’s claims have allegedly “been refuted by the scientific community” as he sought to settle questions about the scientific minutiae of the debate, such as whether the flagellum might have evolved from a type three secretory system (T3SS) or whether the vertebrate immune system could have arisen in a Darwinian fashion. These are interesting and important questions, but regardless of whether you agree with Judge Jones’ answers, they are questions about good science vs. bad science in a curriculum, and are NOT question about an establishment of religion. Whether ID’s claims constitute good science would be a question for the legislative branch to address; addressing such matters should not be within the domain of a court’s constitutional analysis.

Another reason why courts should not try to settle scientific debates is because courts don’t adequately address the issues and are not well-suited to settle scientific controversies. In fact, Judge Jones’ arguments about the alleged “refutation” of ID are highly debatable. Two examples will suffice.

Judge Jones claimed that plaintiffs’ expert witness Kenneth Miller explained how the bacterial flagellum could evolve from the T3SS. However, a number of biologists have concluded the phylogenetic data disbars the T3SS from being a precursor to the flagellum. In short, flagella are widely distributed among large numbers of types of bacteria, where as T3SSs are limited to a small range of bacterial taxa. This makes it difficult to argue that the flagellum evolved from the T3SS or a highly similar precursor.17

When making conclusions about the flagellum, Judge Jones also ignored expert testimony by pro-ID microbiologist Scott Minnich, a flagellum expert who runs a lab at the University of Idaho studying the flagellum. Minnich explained that even if Miller’s speculative scenario turned out to be true, it would not be sufficient to prove a Darwinian explanation for the origin of the flagellum18 because there is still a huge “leap” in complexity from a T3SS to a flagellum. What we have here is evidence of a scientific debate between two experts — including a pro-ID expert who is a respected authority in this field. Judge Jones should not have tried to settle the scientific debate.

The unresolved challenge that the irreducible complexity of the flagellum continues to pose for Darwinian evolution is starkly summarized by William Dembski:

“At best the T[3]SS represents one possible step in the indirect Darwinian evolution of the bacterial flagellum. But that still wouldn’t constitute a solution to the evolution of the bacterial flagellum. What’s needed is a complete evolutionary path and not merely a possible oasis along the way. To claim otherwise is like saying we can travel by foot from Los Angeles to Tokyo because we’ve discovered the Hawaiian Islands. Evolutionary biology needs to do better than that.”19

Dembski’s critique is apt because it recognizes that Miller wrongly characterizes irreducible complexity as focusing on the non-functionality of sub-parts. Conversely, Behe properly tests irreducible complexity by assessing the plausibility of the entire functional system to assemble in a step-wise fashion, even if sub-parts can have functions outside of the final system.20 The “leap” required by going from one functional sub-part to the entire functional system is indicative of the degree of irreducible complexity in a system.21 Contrary to Miller’s assertions, Behe never argued that irreducible complexity mandates that sub-parts can have no function outside of the final system.22 In the end, Judge Jones’ conclusion that Miller refuted the irreducible complexity of the flagellum “based upon peer-reviewed studies” was plainly erroneous. Indeed, a review article published after the Kitzmiller ruling admits that “the flagellar research community has scarcely begun to consider how these systems have evolved.”23

In another finding which was both wrong and irrelevant, Judge Jones ruled that “Dr. Miller presented peer-reviewed studies refuting Professor Behe’s claim that the immune system was irreducibly complex.”24 Moreover, Judge Jones found that Behe’s claims that the immune system was irreducibly complex were refuted by a large stack of papers dumped upon him during cross-examination:

“[O]n cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty-eight peerreviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system.”25

Yet Behe never claimed that no papers or books are “about the evolution of the immune system” — indeed in Darwin’s Black Box, Behe wrote that “[t]here are other papers and books that discuss the evolution of the immune system.”26 On the contrary, Behe actually testified:

“These articles are excellent articles I assume. However, they do not address the question that I am posing. So it’s not that they aren’t good enough. It’s simply that they are addressed to a different subject.”27

Thus, what Behe actually requested was, “a step-by-step mutation by mutation analysis” of the evolution of the immune system, for Behe said he is “quite skeptical” that the papers in the literature dump “present detailed rigorous models for the evolution of the immune system by random mutation and natural selection.”28 Judge Jones misquoted Behe and twisted his views about the state of evolutionary literature on the origin of the immune system.

One of the 58 articles dumped on Behe was an authoritative article published in Nature the year before the Kitzmiller trial which conceded that there were major questions about step-by-step accounts of the evolution of the adaptive immune system. In that recent and authoritative paper, Max Cooper, one of the fathers of immunology, wrote that the evolutionary origin of one of the most important components of the higher vertebrate “adaptive immune system,” the immunoglobulin (IG) domain containing antibody, is currently “untraceable”:

“In contrast, the deployment of immunoglobulin domains as core components of jawed vertebrate recombinatorial lymphocyte receptors represents an intriguing although as yet untraceable evolutionary innovation, as immune recognition of pathogens and allografts by means of immunoglobulin superfamily members have been shown only in the jawed vertebrates.”29

IG domains perform a primary structural function in antibodies of the “adaptive immune system” used by all jawed vertebrates (such as sharks, reptiles, birds, and mammals). The paper discovered that the antibody-equivalent in the lamprey (a jawless vertebrate fish) is highly dissimilar, both in structure and how they are assembled. In fact, the lamprey uses a completely different type of protein domain for its antibody-equivalent structures. This paper therefore calls the origin of anitibodies that utilize IG domains presently “untraceable.”

Furthermore, when these authors say that the usage of IG domains is “untraceable,” they are not asking the question “from what were these materials co-opted during evolution?” IG domains are found throughout biology from bacteria to humans and thus it is simple to imagine where higher vertebrates might have co-opted such domains. Rather, this paper is talking about the type of deeper question Behe raises: by what Darwinian pathway did IG domains evolve into the type of IG domain used by antibodies in the adaptive immune system of higher vertebrates?

This paper had no answer to that question, yet Judge Jones claimed that Miller provided evidence demonstrating that “[b]etween 1996 and 2002, various studies confirmed each element of the evolutionary hypothesis explaining the origin of the immune system.”30 Did Judge Jones read these 58 papers plus books and other literature dumped during the trial to verify his claim? I highly doubt it. After all, Judge Jones’ discussion on the immune system was copied nearly verbatim from an ACLU brief.31 But a cursory look at one of those papers reveals that Judge Jones’ finding was a bluff, and Behe’s arguments were never refuted.

In the end, most of Kenneth Miller’s arguments about the evolution of the immune system were based upon observing mere sequence similarity or functional similarity between proteins used by our immune system and some found in lower organisms. In other words, some of the starting material might be crudely present elsewhere in biology, but Miller did not testify about any step-by-step Darwinian pathways as Behe requested, nor did Miller testify about the vast differences between our adaptive immune system and immune systems used by lower organisms like the Lamprey.32 Behe was never refuted, and Judge Jones’ strong findings based upon such hypothetical arguments demonstrate his uncritical acceptance of the plaintiffs’ literature-dump bluffs.

These episodes provide vivid illustrations why it is dangerous for courts to try to settle these scientific debates. Legal scholars agree with this basic point.

Arnold H. Loewy, a self-described “liberal First Amendment theorist,” critiqued Judge Jones arguing that “it is not the Court’s job to distinguish good science from bad in the realm of education.”33 Similarly, anti-ID legal scholar Jay Wexler argues that “the part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous both to science and to freedom of religion.”34

D. The fact that ID is a minority scientific viewpoint is irrelevant to a determination of whether it is science.

Judge Jones also claimed ID was not science because it has “failed to gain acceptance in the scientific community.” This accusation is irrelevant. Science is not a democracy, nor is it decided by votes. The level of acceptance of ID in the scientific community is not an appropriate test of whether ID is science, nor is it a good measure of whether ID will turn out to be scientifically correct. Every single scientific revolution began as a minority viewpoint that was eschewed by the scientific majority. Thus Judge Jones’ view of the nature of scientific inquiry threatens the progress of science because it would disqualify any new or novel scientific viewpoint as “unscientific.”

The point that scientific progress depends upon consideration of minority views and unpopular ideas was made emphatically and eloquently by Stephen Jay Gould, writing with other scientists, in an amicus brief submitted to the United States Supreme Court in the landmark 1993 case, Daubert v. Merrell Dow Pharmaceuticals:

“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. … 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.”35

Making “acceptance” by the scientific community a valid test for whether an idea is scientific would jeopardize the status of most new theories in science, not just ID. As stated in an amicus brief submitted to Judge Jones by 85 scientists in defense of academic freedom for ID, new ideas in science typically start out as minority views opposed by the current scientific majority:

The history of science … reveals that novel scientific theories, even those that prove successful, are often resisted by an “old guard” that defends the long-standing paradigms. Philosophers of science teach that scientists committed to the reigning paradigm engage in “normal science” where scientific dogmas are not questioned. Those practicing “normal science” typically close their ears to dissent:

‘No part of the aim of normal science is to call forth new sorts of phenomena; indeed those that will not fit the box are often not seen at all. Nor do scientists normally aim to invent new theories, and they are often intolerant of those invented by others.’

“Intelligent design fits this historical pattern. It is a relatively young scientific theory, based upon relatively new scientific data, which is currently opposed by many ‘normal scientists’ committed to the Neo-Darwinian paradigm.36

E. Judge Jones’ claim that ID has not produced peer-reviewed scientific publications is both false and irrelevant.

In no fewer than 5 places in the Kitzmiller ruling, Judge Jones found it fit to claim that ID was not science because it has “not generated peer-reviewed publications.”37 This claim is both irrelevant and flatly false.

This claim is irrelevant because the U.S. the Supreme Court has stated that peer-reviewed publication is not a necessary condition of admissibility for scientific evidence.38 Thus, it is entirely possible for a claim to be scientific even if has not been published in the peer-reviewed scientific literature.

This claim is false because, quite frankly, Judge Jones chose to ignore the evidence that was presented to him documenting pro-ID peer-reviewed scientific publications published by ID proponents. Expert witnesses Scott Minnich and Barbara Forrest each discussed39 an explicitly pro-ID article by Stephen Meyer in the peer-reviewed biology journal, Proceedings of the Biological Society of Washington.40 Moreover, Behe testified about his article, co-authored with physicist David Snoke, in the peer-reviewed journal Protein Science reporting on computer calculations showing that implausibly large population sizes are required to evolve simple protein-protein interactions via the common method of gene duplication.41 Other peer-reviewed pro-ID articles published in mainstream scientific journals and books were documented in an amicus brief accepted by Judge Jones,42 and Scott Minnich testified at trial that between “seven and ten” peer-reviewed papers supporting ID exist.43 The factual record in the case absolutely refutes Judge Jones claims that ID has “not generated peer-reviewed publications.”

F. The claim that ID has not produced scientific research is also both irrelevant and false.

Finally, Judge Jones claimed that ID was not science because it allegedly has not “been the subject of testing and research.”44 Again, this claim is both irrelevant and false. Philosophers of science have acknowledged that “[t]he requirement is that a scientific theory be testable, not that its proponents actually test it.”45 Moreover, in his court testimony, microbiologist Scott Minnich showed slides of the genetic knock-out experiments he performed in his own laboratory at the University of Idaho, which presented evidence that the bacterial flagellum is irreducibly complex with respect to its complement of thirty-five genes.46 Judge Jones failed to mention any of Minnich’s experimental data supporting the irreducible complexity of the flagellum.

Should we uncritically believe the “Bush-appointed Republican Judge”?

It has been my experience that some who are inexperienced with the law find it highly persuasive to hear the argument that Judge Jones was a “Bush-appointed Republican judge.” This argument against ID is so popular, that if one Googles “Bush-appointed Republican judge” the first hit returned is the entry for Judge Jones from the stridently anti-ID Wikipedia.47 The popularity of this argument is ironic given that many who make it are not inherently disposed to believing the words of Bush-appointed Republican judges.

Regardless, those interested in a serious examination of Kitzmiller must remember that who did or did not appoint Judge Jones has nothing to do with whether his ruling was accurate. In fact, those who attend law school learn on their first day that federal judges regularly get things wrong all the time, and judges appointed by a given president with given political leanings do not always turn out to share that president’s views.

The notion that the Kitzmiller ruling is accurate simply because Judge Jones was a Bush-appointee is rhetorically defeated by the observation that “90.9% (or 5,458 words) of Judge Jones’ 6,004-word section on intelligent design as science was taken virtually verbatim from the ACLU’s proposed ‘Findings of Fact and Conclusions of Law’ submitted to Judge Jones nearly a month before his ruling.”48 As I have shown, a careful analysis shows that the celebrated portion of Judge Jones’ Kitzmiller ruling that held ID to be unscientific was borrowed from a script that was more fiction than fact.

If Neo-Darwinism Is Science, Why Can’t ID Be Science?

Judge Jones’ mistakes aside, the major problem confronting those who argue that ID is not science is the fact that neo-Darwinism is typically framed as a refutation of ID, yet it has long been considered scientific. The atheist philosopher and legal scholar Thomas Nagel explains that if neo-Darwinism is scientific, then it is difficult to argue that ID is unscientific:

From the beginning it has been commonplace to present the theory of evolution by random mutation and natural selection as an alternative to intentional design as an explanation of the functional organization of living organisms. … No one suggests that [neo-Darwinism] is not science, even though the historical process it describes cannot be directly observed, but must be inferred from currently available data. It is therefore puzzling that the denial of this inference, i.e., the claim that the evidence offered for the theory does not support the kind of explanation it proposes, and that the purposive alternative has not been displaced, should be dismissed as not science. The contention seems to be that, although science can demonstrate the falsehood of the design hypothesis, no evidence against that demonstration can be regarded as scientific support for the hypothesis. Only the falsehood, and not the truth, of ID can count as a scientific claim.49

Nagel correctly exposes the hypocrisy among many who claim that ID is not science: since neo-Darwinism claims that we can scientifically conclude that there is no detectable purpose and design in biology, why must the opposite claim be considered unscientific? Had Judge Jones recognized that if neo-Darwinism is considered to be science, then ID must also be science, he might have ruled differently. As I argued in my first opening statement (“Intelligent design (ID) has scientific merit because it uses the scientific method to make its claims and infers design by testing its positive predictions“):

“One can disagree with the conclusions of ID, but one cannot reasonably claim that it is an argument based upon religion, faith, or divine revelation. Nothing critics can say — whether appealing to politically motivated condemnations of ID issued by pro-Darwin scientific authorities, or harping upon the religious beliefs of ID proponents — will change the fact that intelligent design is not a ‘faith-based’ argument. Intelligent design has scientific merit because it is an empirically based argument that uses well-accepted scientific methods of historical sciences in order to detect in nature the types of complexity which we understand, from present-day observations, are derived from intelligent causes.”

Secular Purposes for Teaching ID?

Given that ID should be considered science, the only remaining hurdle to address is thus whether ID can be taught under legitimate secular purpose.

The National Science Education Standards, published by the National Academy of Sciences (NAS), recommend that good science education encourages students to engage in “identification of assumptions, use of critical and logical thinking, and consideration of alternative explanations.”50 The Standards explain why students should be able to “recognize and analyze alternative explanations and models”:

This aspect of the standard emphasizes the critical abilities of analyzing an argument by reviewing current scientific understanding, weighing the evidence, and examining the logic so as to decide which explanations and models are best. In other words, although there may be several plausible explanations, they do not all have equal weight. Students should be able to use the scientific criteria to find the preferred explanations.51

While the NAS ardently opposes teaching ID, I believe that teaching ID is easily justified under a fair and neutral application of these standards for good science education. There are thus a number of clear secular purposes that justify teaching students about scientific alternatives to neo-Darwinian evolution like intelligent design. According to an amicus brief submitted to the court in the Kitzmiller v. Dover case, some secular purposes for teaching ID include:

  • Informing students about competing theories of biological origins as they exist within the scientific community;
  • Helping students to better understand neo-Darwinism by understanding a theory with which it competes;
  • Enhancing critical thinking skills by exposing students to alternative explanations for the origin of life;
  • Helping students to understand the value of dissenting viewpoints in the advancement of scientific knowledge;
  • Increasing student interest in science by exposing them to current debates within the scientific community; and
  • Advancing cultural literacy by helping students understand a current controversy about science and science education policy.52

If we accept that ID is a scientific viewpoint that can be taught under a legitimate secular purpose, then it satisfies the U.S. Supreme Court’s dicta in Edwards v. Aguillard that “teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.”53

References Cited:

[1.] Jay D. Wexler, “Kitzmiller and the ‘Is It Science?’ Question,” 5 First Amendment Law Review 90, 93 (2006).

[2.] Discovery Institute’s Science Education Policy, at

[3.] Edwards v. Aguillard, 482 U.S. 578, 593-594 (1987).

[4.] Ibid. at 592.

[5.] Larry Laudan, Beyond Positivism and Relativism: Theory, Method, and Evidence, pg. 210 (Westview Press 1996).

[6.] Kitzmiller v. Dover Area School District, 400 F.Supp.2d 707, 764 (M.D.Pa. 2005) (“since ID is not science, the conclusion is inescapable that the only real effect of the ID Policy is the advancement of religion.”); McLean v. Arkansas Board of Education, 529 F. Supp. 1255, 1272 (E.D. Ark. 1982) (“Since creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion”).

[7.] Kitzmiller v. Dover, 400 F.Supp.2d. 707, 735 (M.D.Pa 2005).

[8.] Ibid. at 764.

[9.] Edwards v. Aguillard, 482 U.S. 578, 586–87 (1987).

[10.] Much of this section is adapted from David K. DeWolf, John West, Casey Luskin, “Intelligent Design will Survive Kitzmiller v. Dover,” 68 Montana Law Review 7 (Winter, 2007).

[11.] Kitzmiller v. Dover, 400 F. Supp. 2d 707, 721 (M.D.Pa 2005).

[12.] Michael Behe, “Afterward,” in Darwin’s Black Box: The Biochemical Challenge to Evolution, pgs. 263-264 (Free Press, Reprint, 2006).

[13.] Bradley Monton, Is Intelligent Design Science? Dissecting the Dover Decision 1-2,; path Authors/Editors, search “Monton”, path Authors/Editors, search “Monton”, path year, search “2006” (Jan. 18, 2006).

[14.] Ibid. at 3.

[15.] Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684, 694 (11th Cir. 1987).

[16.] Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

[17.] The lack of a fossil record for biological molecules makes it difficult to even assess this question. Milton H. Saier, Jr., “Evolution of Bacterial Type III Protein Secretion Systems,” Trends in Microbiology, Vol. 12:113 (2004); see also Uri Gophnaa, Eliora Z. Rona & Dan Graur, “Bacterial Type III Secretion Systems Are Ancient and Evolved by Multiple Horizontal- Transfer Events,” Gene, Vol. 312:151 (2003).

[18.] Transcript of Proceedings Afternoon Session, pg. 112:13-25 (Nov. 3, 2005), Kitzmiller, 400 F. Supp. 2d 707.

[19.] William A. Dembski, “Rebuttal to Reports by Opposing Expert Witnesses,” pg 52, at http:// 14, 2005).

[20.] Casey Luskin, “Do Car Engines Run on Lugnuts? A Response to Ken Miller & Judge Jones’s Straw Tests of Irreducible Complexity for the Bacterial Flagellum,” International Society for Complexity, Information, and Design Archives, at papers/Luskin_EngineLugnuts_042706.pdf

[21.] Michael J. Behe, “A Response to Critics of Darwin’s Black Box,” Progress in Complexity, Information, and Design (January – March, 2002), pg. 17, at

[22.] Behe, Darwin’s Black Box, pgs. 40, 65-67.

[23.] Mark J. Pallen & Nicholas J. Matzke, “From The Origin of Species to the Origin of Bacterial Flagella,” Nature Reviews Microbiology, Vol. 4:784, 788 (2006).

[24.] Kitzmiller v. Dover, 400 F.Supp.2d 707, 741 (M.D.Pa 2005).

[25.] Ibid.

[26.] Behe, Darwin’s Black Box, pg. 138.

[27.] Transcript of Testimony of Michael Behe 19 Kitzmiller, No. 4:04-CV-2688 (M.D. Pa., Oct. 19, 2005).

[28.] Ibid. at 19, 23.

[29.] Z. Pancer, Z., C. T. Amemiya, G. R. A. Ehrhardt, J. Ceitlin, G. L. Gartland, M. D. Cooper, “Somatic diversification of variable lymphocyte receptors in the agnathan sea lamprey,” Nature, Vol. 430: 174-180 (July 8, 2004) (emphasis added).

[30.] Kitzmiller v. Dover, 400 F.Supp.2d 707, 741 (M.D.Pa 2005).

[31.] See John G. West & David K. DeWolf, “A Comparison of Judge Jones’ Opinion in Kitzmiller v. Dover with Plaintiffs’ Proposed “Findings of Fact and Conclusions of Law,” pgs. 3, 24, at

[32.] “The significant similarity between the transib transpases and RAG core, the common structure of these transpases and others, as well as the similar size of these basically catalyzed by these enzymes directly support the 25-year-old hypothesis of a transposon related origin of the VDJ machinery.” Transcript of Testimony of Kenneth R. Miller 30-31, Kitzmiller, No. 4:04-CV-2688 (M.D. Pa., Sept. 26, 2005).

[33.] Arnold H. Loewy, “The Wisdom and Constitutionality of Teaching Intelligent Design in Public Schools,” 5 First Amendment Law Review 82, 85 (2006).

[34.] Jay D. Wexler, “Kitzmiller and the ‘Is It Science?’ Question,” 5 First Amendment Law Review 90, 93 (2006).

[35.] Brief Amici Curiae of Physicians, Scientists, and Historians of Science in Support of Petitioners, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[36.] Brief of Amici Curiae Biologists and Other Scientists in Support of Defendants, pgs. 8-9, Kitzmiller (quoting Thomas S. Kuhn, The Structure of Scientific Revolutions, pg. 24 (2nd ed., University of Chicago Press 1970).

[37.] Kitzmiller v. Dover, 400 F.Supp.2d 707, 735, 744, 745 (M.D.Pa. 2005), also stating ““A final indicator of how ID has failed to demonstrate scientific warrant is the complete absence of peer-reviewed publications supporting the theory”; “The evidence presented in this case demonstrates that ID is not supported by any peer-reviewed research, data or publications”; “In addition to failing to produce papers in peer-reviewed journals…”; “we 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.”

[38.] “Publication . . . is not a sine qua non of admissibility; it does not necessarily correlate with reliability.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993).

[39.] Transcript of Proceedings Afternoon Session, pgs. 33-34 (Oct. 5, 2005), Kitzmiller, 400 F. Supp. 2d 707; Transcript of Proceedings Morning Session, pgs. 79-80 (Oct. 6, 2005), Kitzmiller, 400 F. Supp. 2d 707; Transcript of Proceedings. Morning Session, pg. 34 (Nov. 4, 2005), Kitzmiller, 400 F. Supp. 2d 707.

[40.] Stephen C. Meyer, “The origin of biological information and the higher taxonomic categories,” Proceedings of the Biological Society of Washington, Vol. 117(2):213-239 (2004).

[41.] Michael J. Behe & David W. Snoke, “Simulating Evolution by Gene Duplication of Protein Features that Require Multiple Amino Acid Residues,” Protein Science, Vol. 13:2651 (Oct. 2004).

[42.] Brief of Amicus Curiae Foundation for Thought and Ethics, Appendix D at pgs. 8-13, at

[43.] Transcript of Proceedings Morning. Session, pg. 34:5 (Nov. 4, 2005), Kitzmiller, 400 F. Supp. 2d 707.

[44.] Kitzmiller v. Dover, 400 F.Supp.2d 707, 735 (M.D.Pa. 2005).

[45.] Phillip L. Quinn, The Philosopher of Science as Expert Witness, in Science and Reality: Recent Works in the Philosophy of Science 32, 47 (J. Cushing et al. eds., U. of Notre Dame Press 1984).

[46.] Transcript of Proceedings of Afternoon Session, pgs. 99–108 (Nov. 3, 2005), Kitzmiller, 400 F. Supp. 2d 707.

[47.] See

[48.] John G. West & David K. DeWolf, “A Comparison of Judge Jones’ Opinion in Kitzmiller v. Dover with Plaintiffs’ Proposed ‘Findings of Fact and Conclusions of Law’,” at

[49.] Thomas Nagel, “Public Education and Intelligent Design,” Philosophy & Public Affairs, Vol. 36(2):187-205 (Wiley, 2008).

[50.] National Research Council, National Science Education Standards, pg. 23 (National Academy Press, 1996).

[51.] Ibid. at 175.

[52.] (Rev.) Br. of Amicus Curiae Discovery Inst. at 10-11, Kitzmiller, 400 F. Supp. 2d 707.

[53.] Edwards v. Aguillard, 482 U.S. 578, 593-594 (1987).

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.