Objective unconstitutionality

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Thanks to Ed Brayton, here's an excellent article by Michael Dorf, a leading legal thinker, on why teaching ID is unconstitutional.

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Michael Dorf explains Why It's Unconstitutional to Teach "Intelligent Design" in the Public Schools. You'll have to read it, but the essential argument is that ID is not a scientific theory, and hence it amounts to teaching a particular religion's... Read More



BTW, the best legal columnist on church/state issues is Marci Hamilton, also of FindLaw.

I’m not persuaded to his argument.

And if intelligent design is not science, then it follows that the objective purpose of those who would have it taught alongside evolution in the public schools is to advance a religious view.

Sure, 99% of the motivation for ID is a belief that religion is true. But there are a few ID supporters around who aren’t motivated by religion, they’re just too daft to understand evolution. It’s not true that something’s either science or a servant of religion–it could just be a servant of stupidity. In the Dover case, we need not worry about that distinction, though, the morons have made it abundantly clear that they are acting to promote christianity.

This country wasn’t founded on Muslim beliefs or evolution, This country was founded on Christianity and our students should be taught as such.” … “Two thousand years ago, someone died on a cross. Can’t someone take a stand for him?”

–Bill Buckingham, who may go down in history as the guy who threw the Discovery Institute’s millions down the drain.

And lucky for us the Discovery Institute was so nice as to make known to all of us their Wedge Strategy. Although they have tried to redirect from their religious motivations, it seems that school boards are still following the Wedge plans.

We can thank the good people at the Discovery Institute for their invaluable contributions to laying the foundation for the claim that ID is religiously motivated. Teach the controversy is just another way to hide these facts. No wonder the DI is speaking out so strongly whenever people observe the religious foundations of ID. It’s an Icon of ID that has become the albatross around its neck (my apologies to Coleridge)


But there are a few ID supporters around who aren’t motivated by religion, they’re just too daft to understand evolution. It’s not true that something’s either science or a servant of religion—it could just be a servant of stupidity.

I’m afraid this may be wishful thinking in some cases. There are a few posters on the ARN board (and other places) who clearly understand all current variations of the evolutionary theory, who claim no religious motivations, yet who “see indications” of design in the evidential record.

For some while now, I’ve been trying to get these people to explain the context within which they see these indications. After all, in the absence of any comparison (such as a *known* designed life form or a *known* non-designed life form), how could someone see design? For the vast majority, of course, they see design in the context of their religious faith. But those denying a religious tie-in would have to see design in the context of *something*, and we know that something is not evidence, nor can be. And these people readily admit that there’s no such evidence, that design can’t be investigated by science, and that ID is therefore not science in their view.

But in that case, what DOES motivate them to see design? It’s not evidence, it’s not science, it’s not religion, it’s not contrast with anything different. Apparently it’s just a kind of gut feeling that “this couldn’t have happened naturally, and it looks kind of like something a person might design.” This isn’t stupidity or ignorance, it is faith.

But isn’t faith a religious motivation? My take is that these people, being biologists (and they are), prefer to consider themselves ‘objective’ scientists, whom (as we all know) have no personal motivations and are free of any bias. Presenting the logic of the situation (designed is a concept like ‘big’, meaningless outside of some context, and therefore they MUST be projecting a faith even if they can’t admit it) is guaranteed to attract apoplectic insult from these people.

Still, all a court needs to ask is “how would you construct a means of detecting design?”

There are a few posters on the ARN board (and other places) who clearly understand all current variations of the evolutionary theory, who claim no religious motivations, yet who “see indications” of design in the evidential record.

I really have to wonder why these non-religiously motivated people, if they exist, would champion a religiously originated movement, or would ally themselves under the banner of Intelligent Design. The notion of design is a philosophical, but not necessarily religious idea (if such a distinction can be made). Is design or teleology such a weak concept that these people would be so desperate to find any forum, no matter how disreputable, to voice their idea?

Doesn’t ‘not science, therefore religion’ sound a lot like ‘not nature, therefore design’? Others here have argued that the ‘not X, therefore Y’ argument of Dembski is invalid. I have to agree with Steve (#12239). Those who argue for design from a nonreligious view (who are these people?) seemingly have not considered their own underlying assumptions, but I find an argument that ‘what is not science is religion’ is a weak way to go to court. The evidence of the wedge strategy makes it clear what most IDCist think, but could a few nonreligious supporters of design upset the arguments in court?

The Dorf article describes that very few cases make it to the high precedent-establishing level, though. I’ll be disappointed if the Doverites back down. But the DI and others are certainly begging them to do so. If ID is to win, the effort must be constructed of deception from the first moment, and in Dover, the cat’s already out of the bag.

Even though I didn’t understand everything in the Dorf’s text, the whole matter suggested me a question or two. After being defeated on the creationism “as it is”, the DIers try to circumvent the obstacle with the “intelligent design” thing, as far as I get the Us situation. If, and it is a big if, the court will stop them teaching ID either, what will be their next move, in your opinion? We in Italy have a ministry of education who “forget” to put darwinian evolution in the school curriculum (from 1rst to 8th grades, if I’m not mistaken), but the story is different, since we have a statewide curriculum. Could the next move of the Diers be in that direction? Cancelling (or not mandate) darwinian evolution, so as to allow teachers to teach whatever they want, or nothing at all? And leaving (with a wink) to sunday schools the whole story of the origins and modifications of life? What are your thoughts? Ah, and have a happy holidays 8-)


P. S. As usual, try to understand the thoughts, not the grammar of my english.

And now, the architect of this absurdity is MIA

Only one word comes to mind: Coward.

Perhaps this is the reason

Buckingham didn’t go to church Sunday, so he didn’t hear the church pray that God would guide him and give him wisdom.

God works in mysterious ways indeed.

Um, Buckingham? Many of us are taking a stand for Jesus – we insist that kids be told the facts, the truth, in class. No creationism claims, no ID claims, that haven’t been vetted in a laboratory or observed in the wild.

It’s about time Buckingham started taking a stand Jesus would be happy with, instead of defending crank science.

No creationism claims, no ID claims, that haven’t been vetted in a laboratory or observed in the wild.

No evolution claims likewise? Ah, never mind. Happy holidays, all!


I posted this over on Dorf’s comment bandwidth, but they have a very limited format. It should be more readable here at PT.

Michael C. Dorf wrote a helpful analysis of the Dover situation and a possible court argument in “Why It’s Unconstitutional to Teach “Intelligent Design” in the Public Schools, as an Alternative to Evolution”. What Dorf seeks to avoid is the question of the secular vs. sectarian motive for authors of pro-creationist laws. As he said in his introduction,

“Thus, the better reading of the Aguillard opinion makes the constitutionality of a law challenged on Establishment Clause grounds depend on its objective purpose–the purpose or purposes that a reasonable person would attribute to the legislature, in light of what the law actually requires. Justice Brennan’s opinion saw through the sponsor’s stated aim, to his true aim. In the Dover case and other litigation involving intelligent design, the courts ought to be able to do the same.”

He then tries to provide a means for the court to do so based on the question of whether Intelligent Design Creationism can be considered as a “science.”

from Discerning the Objective Purpose of the Dover Policy: Why it Matters Whether Intelligent Design is a Scientific Theory”

“To be clear, there is no general constitutional requirement that public school students be taught the truth. For example, suppose a school board mandates that high school American history courses emphasize inspiring moments from our past–entirely omitting the shameful treatment of Native Americans, the enslavement of millions of African Americans, and the internment of Japanese Americans. Certainly, the school board would thereby do its students and the community a disservice, but it would not violate any provision of the Constitution with its highly selective history classes.”

But, the omission of the Native American genocide, pre-Lincon slavery, and the W.W.II Japanese internment could be seen as a different thing that their denial. (I recently made some observations about the marked social and intellectual similarities between evolution deniers and Holocaust deniers). But, as there is no genetically imprinted memory of past events, the systematic refusal to teach of events is the equivalent of denial. And, the denial and eventual complete elimination of evolutionary biology followed with the elimination and/or extreme reformulation of all other sciences is the expressed and published goal of IDC. For example, J. P. Moreland, Professor at the Talbot School of Theology at Biola University (the Bible Institute of Los Angeles), favorably offers this summary of Dembski’s program:

“William Dembski has reminded us that the emerging Intelligent Design movement has a four pronged approach to defeating naturalism:

(1) A scientific/philosophical critique of naturalism; …

(2) a positive scientific research program (Intelligent Design) for investigating the effects of intelligent causes;

(3) rethinking every field of inquiry infected with naturalism and reconceptualizing it in terms of design;

(4) development of a theology of nature by relating the intelligence inferred by intelligent design to the God of Scripture (Moreland 1999 quoting Dembski 1998:29).

Dembski would strenuously object that his explicit identification of the designer as the Judeo-Christian-Islamic God (which he as reiterated elsewhere) is irrelevant to the merits of his case. Michael Behe is, if anything, even more adamant that there is not the least implication that his designer is the Judeo-Christian-Islamic God (Behe 2001). And yet, their every unguarded comment demonstrates their manifest goal to promote a purely religious program.

Design Institute luminary Jonathan Wells claimed that, “During my years as a physical science undergraduate and a biology graduate student at the University of California Berkley, I believed almost everything that I read in my text books.” (Wells (2000) the first Preface sentence of “Icons of Evolution”). But in an unguarded moment he admitted that, “Father’s* words, my studies, and my prayers convinced me that I should devote my life to destroying Darwinism, … When Father chose me (along with about a dozen other seminary graduates) to enter a Ph.D. program in 1978, I welcomed the opportunity to prepare myself for battle.” (* Wells “Darwinism: Why I Went for a Second Ph.D.” Wells is a follower of The Rev. Sun Myung Moon, who teaches that he (Moon) is God and is called “The Father” by his followers). Wells lied, either to those who read his book, or those who read his preaching.

It is at this point that I wonder if Dorf has sufficient familiarity with Intelligent Design Creationist writing.

“But given the social reality, “intelligent design” is different. It is an allegedly scientific theory that bears a striking resemblance to religious views. When the government mandates that students be taught such a theory, courts are rightly suspicious.

At that point, a court should ask whether intelligent design is, in fact, a scientific theory at all. It should do so, not because of any general obligation on the part of schools to teach science correctly, but simply because if intelligent design is not science, then the inference is almost inescapable that the state is impermissibly acting for the purpose of fostering a religious viewpoint.”

Well, I have indicated that IDC is not particularly differently motivated from any prior version of religious fundamentalism falsely paraded a “science” as admitted by the most central and influencial IDC writers. The question of whether IDC could pass as science independently of its explicit religious motivation might seem to be a seperate question. A direct and quite thorough debunking of the so-called science of IDC can be found in Why Intelligent Design Fails: A Scientific Critique of the New Creationism Matt Young, Tanner Edis (ed.s), Rutgers University Press 2004. (Disclosure of personal interest: my chapter was titled “The Explanatory Filter, Archaeology, and Forensics,” pg 107-120). I think that the last chpater, by physicists Mark Perakh and Matt Young, “Is Intellignet Design Science?” might be more to Dorf’s purpose (Young and Edis (2004:185-196).

“However, most versions of intelligent design offered as alternatives to Darwinian evolution do not insist on the literal truth of the book of Genesis. Rather, they contend that gaps in evolutionary theory can only be plugged by the assumption that an intelligent agent has guided the development of life on Earth.”

This is actually contrary to the actual admissions of key IDC authors, but does raise a peculiar question, “Can ignorant legislators, taken in by the falsehoods promulgated by the likes of the Discovery Institute, Constitutionally promote a fundamentally religious dogma incorrectly thinking that it is secular?”

I would welcome a reading of “Teaching the Origins Controversy: Science, Or Religion, Or Speech?” by Professor Dorf. This is the type of legal resoning that I think we can expect to see employed in the Dover case.


Behe, Michael J. 2001 “The Modern Intelligent Design Hypothesis: Breaking Rules” Philosophia Christi, Series 2, Vol. 3, No. 1.

Dembski, William 1998 “Introduction” in Mere Creation William Dembski (ed). Downers Grove, IL: InterVarsity Press

Moreland, J. P. 1999 “Postmodernism and the Intelligent Design Movement” Philsophia Christi Series 2, Vol. 1, No. 2: 97-101.

Young, Matt Tanner Edis (ed.s) 2004 “Why Intelligent Design Fails: A Scientific Critique of the New Creationism” Piscataway NJ: Rutgers University Press.

Wells, Jonathan 2000 Icons of Evolution. Washington D.C.: Regnery Publishing, Inc.

Marco: I’ve given this some thought. Your experience in Italy of creationists just removing evolution jives with what I think will happen here in the US. Italy would seem to be prety similar to the US religiously, at least according to this report. Only real difference is all of the Protestents have been converted into Catholics in Italy.

If Intelligent Design gets struck down by the United States Supreme Court(A lesser court ruling will do damage, but will not cause the movement to self destruct), the first thing that will happen is all of the Intelligent Design advocates will go away. They screwed up and now they need to be sent to their room to think about what they’ve done. All of the organizations devoted to it will either dissolve or lose most of their funding. The entire point of it was to get past the secular requirement. Once the courts recognize ID as non-secular, the organizations no longer have any reason to exist.

This leaves them with the problem of coming up with some even more watered-down way of assaulting evolution.

My best guess on the next thing they will do is they’ll start organizations dedicated to “Cleansing classrooms of the bad science”. Instead of just attacking evolution specifically, these organizations will attack many other scientific disciplines completely unrelated to religion at the same time. For example, they’ll attack global warming, they’ll attack the concept of biological origins of oil, etc. Because they aren’t just attacking evolution it’ll be easier for them to claim their attacks on evolution are not religiously motivated. They might even be able to get a few conservative atheist scientists on board, making themselves more or less bullet proof.

They’ll claim that certain science has practically become dogma and should not be taught to our students, perhaps being moved solely to the college level. What we need to do is simply remove these concepts from the curriculum. Text books will stop mentioning global warming, evolution, etc.

In essence, they will steal the words right from our mouths. They’ll just reuse all of their old ID arguments, just they wont mention Designers. Remember, their goal is to just get bad science/badthink removed from the classroom, NOT replaced with good science/goodthink. They don’t need answers, they just need to ask questions.

Modesitt suggests that, should ID be determined to be religious material by courts, ID advocates and creationists will then attack science classes dealing with origins of oil.

Creationists around here tend not to be that stupid. Oil can’t be found using creationist geology, and the theory of the origins of oil as ancient organic material is key to finding new deposits of the stuff. Texas is considered an oil state, one where much government is friendly to finding and extracting oil from the ground.

Running against the oil industry is probably a losing proposition. Suggesting that all oilmen are crazy and religiously incorrect is also a non-starter as an issue.

Of course, disasters can occur – but one might wish to be present the day creationists try to tell Exxon-Mobil, Chevron-Texaco and George W. Bush that they are irreligious and unscientific in their search for oil.

Well, this is just what I’m afraid will happen here in Italy too. Denial of darwinian evolution is not enough, because it is based on many other science “facts” and “theories”. But attacking geology, physics and math is a vicious circle that will lead to worst education, and a world where doubts and criticism will disappear. Maybe this is what the IDers really want in the end, toghether with somebody from the establishment. As far as the italian situation is concerned, I think most of the opponent of the darwinian evolution do it just to ape the Us, without even knowing the basis of the theory. We must add to this that the opposition comes mostly from the right-wingers, not necessarly from the religious right (they don’t even know what we’re talking about). And the major accusation to Darwin is that he was a communist (!!!). Anyway, thanks for the answer, I’ll try to get ready for the future.


Maybe this is what the IDers really want in the end, toghether with somebody from the establishment.

I suspect this is correct. In a way, evolution is simply the poster child for Materialism (in the minds of the DI and it’s fellows), and it’s Materialism that they are pledged to defeat. Evolution is simply a good rallying point, because it stirs so many emotional pots.

If the Wedge document is to be believed, the DI won’t really be happen unless they can assault science itself.

Oh, but they exploit all the science achievements. How come they don’t understand that, say, telephone or space travel, or Tv or computer or (for that matter) monoclonal antibodies or stem cells, are all based on the exact same science principles that produced geology dating, or dispelled the myth of YE, or demonstrated beyond any reasonable doubt that chimp and us are genetically very similar? Do they simply dismiss parts of science exploiting others? I mean, there is doubtlessly an hidden agenda, but I don’t think is just assault and destruction of all the sciences. Or, simply put, do IDers think science and religion are at odd, and they have the this-city-is-too-small-for-both-of-us syndrome?


Ed: I should clarify - I don’t think this new movement will be entirely religious. Creationists might form the core, but I think they will attract some people to it that genuinely think the new movement has nothing to do with religion. I think creationists will just build a really big tent that will house all discredited conservatives beliefs and sciences. AIDS denial, creationism, global warming denial, reparative therapy, satanic ritual abuse…There’s no shortage of people to crawl under the tent.

The abiotic origin of oil theory is a very popular conservative talking point in debates about potential oil shortages. “There will never be an oil shortage, haven’t you read about the abiotic origins of oil?” Although, you do have a point. There’s a good chance they just wont have room under the tent for them.

The notion of abiotic oil isn’t pure uninformed politics. There are a couple of dozen fairly persuasive observations indicating that at least some oil is abiotic. Test wells have found oil (but not in economical quantities) where current theories said oil could not be located. Read the appropriate chapter of physicist Robert Ehrlich’s book “Nine Crazy Ideas in Science” for details. He rates these 9 ideas by assigning them cuckoos, the more cuckoos the nuttier (less likely) he considers the idea after he did some considerable footwork. Abiotic oil got zero cuckoos - Ehrlich’s research led him to the conclusion that it’s highly probable.

However, I understand Modesitt’s point about the sheer breadth of the range of people unable to deal with (or just uncomfortable with) the rate of change in their lives, who desperately desire to see it drastically slowed or even reversed to the status quo ante - despite that the ante never physically existed and so exists only in the imagination of those who can’t keep up. All may be looking for absolute answers.

And in this case, the worst thing that could happen would be to establish a curriculum that would allow bright students to start asking how ID works, when it happened, what it does not apply to and how we can tell the difference, etc. Answering these questions entails specifying a particular doctrine, and doing THAT burns the tent in a hurry.

My understanding is that each place oil has been found that it wasn’t “supposed” to be found was, upon investigation, another pocket of ancient life.

Were that not so, the point remains valid. Those who invest billions in finding oil have not yet raided any creationist geology school. There is no useful geology in creationism, and Wall Street doesn’t go there.

On the other hand, have you noticed how, year in and year out, evolution-based pharmaceuticals do well on Wall Street?

Marco Ferrari #12264

I mean, there is doubtlessly an hidden agenda, but I don’t think is just assault and destruction of all the sciences. Or, simply put, do IDers think science and religion are at odd, and they have the this-city-is-too-small-for-both-of-us syndrome?

Let’s take a look at what ID proponents themselves list as their goals in the famous Wedge Strategy

Governing Goals

* To defeat scientific materialism and its destructive moral, cultural and political legacies. * To replace materialistic explanations with the theistic understanding that nature and hurnan beings are created by God.

Five Year Goals

* To see intelligent design theory as an accepted alternative in the sciences and scientific research being done from the perspective of design theory. * To see the beginning of the influence of design theory in spheres other than natural science. * To see major new debates in education, life issues, legal and personal responsibility pushed to the front of the national agenda.

Twenty Year Goals

* To see intelligent design theory as the dominant perspective in science. * To see design theory application in specific fields, including molecular biology, biochemistry, paleontology, physics and cosmology in the natural sciences, psychology, ethics, politics, theology and philosophy in the humanities; to see its innuence in the fine arts. * To see design theory permeate our religious, cultural, moral and political life.

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This page contains a single entry by Timothy Sandefur published on December 24, 2004 10:02 AM.

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