Cobb: Miller’s own Testimony


I haven’t yet addressed one error that Judge Carnes made yesterday. Carnes claimed that the disclaimer sticker accurately reflected the opinion of the textbook author, Ken Miller, that evolution is a theory and not a fact. (I believe that this was part of the defense’s argument.)

“I don’t think you all can contest any of the sentences” on the disclaimer sticker, Judge Ed Carnes of the 11th U.S. Circuit Court of Appeals told an attorney arguing for parents who sued.

“It is a theory, not a fact; the book supports that,” Carnes said.


Judge Ed Carnes of the U.S. 11th Circuit Court of Appeals said that the lower court judge had misstated facts in his ruling, overstating the influence religious protests had on the school board’s actions. He also said the words on the sticker are “technically accurate,” and that the Cobb County school board was justified in singling out the theory of evolution for comment.

“From nonlife to life is the greatest gap in scientific theory,” Carnes said. “There is less evidence supporting it than there is for other theories. It sounds to me like evolution is more vulnerable and deserves more critical thinking” than other subjects.

Here is part of Ken Miller’s testimony during the trial phase:

Q. [By Mr. Manely] Does your text teach that evolution is a theory and not a fact?

A. [Dr. Ken Miller] That’s a difficult question to answer, and the reason for that has to do not with our textbook but with the use of language. In English we often use the word “evolution” to mean two entirely different things. The first way in which we mean it is to describe what happened in the past. The scientific community really is of one mind that evolution took place, that we are descended with modifications from earlier organisms and so is everything else on this planet. This is supported by a host of facts, including the fossil record, including biogeography, and even our own genetics and our own physiology. So the notion that this descent with modification took place, namely that life in the past was different from life in the present and that the life of the past evolved or changed into the life of the present, that’s as much of a fact as anything else we know in science.

How this took place, that’s the respect in which evolution is also a theory. So when we speak of evolutionary theory, what we’re talking about are the mechanisms that drove this change. And there’s considerable – there’s considerable disagreement and considerable scientific work as to the relative merits of geographical isolation, what’s known as ecological isolation, sexual selection, natural selection, physiological selection, and so forth. So in a way it would be really nice if we could invent two distinct words so that we could make clear when we’re talking about evolution, namely the facts of natural history, and evolution, the process. But in that respect it’s quite proper, as we do in our book, to speak of evolutionary theory, talking about the mechanisms of change and the relative importance of various elements of it, and also the fact of evolutionary change.

THE COURT [Judge Cooper]: So evolution is both, then, fact and theory?

THE WITNESS: I think it is fair to say that evolution is certainly a theory, but it is also a fact, in that it is a fact of natural history that evolution took place.

THE COURT: Thank you.

So while Judge Carnes criticized the opinion of Judge Cooper for concluding that the disclaimer was inaccurate, Cooper’s opinion is clearly based on the testimony that he heard and that the appeals court has (apparently) yet to read.


It should also be pointed out that evolution is not a theory on the origin of life itself - which is suggested by the sticker: “Evolution is a theory, not a fact, regarding the origin of living things.”

You can say what you will about the technical truth of those words, but it was clearly intended to deceive and distort.

Just a couple of thoughts:

Evolution is both theory and fact. It is not regarding the origion of living things, that would be abiogenesis. It is regarding the development of living things.

So wrong twice.

The judges will, one hopes, catch a clue at some point in the process–as their law clerks work through the precedents and prepare their chamber memos–that the CreoIDiots speak in carefully-calculated code. (Or, if you prefer, with “forked tongues.”)

In this regard, that ToE is not a theory that’s even directed at the origin of life four billion or so years ago is just one layer of this code.

As many have pointed out all along, including Dr. Miller, the slippery use of “theory” is another layer.

However, in my view, there’s yet another layer of even more deeply-buried deceit and distortion in the choice of the “origin of living things” language used in the sticker. Note that this phraseology does not employ the usual “origin of life”/”abiogenesis” language, language which scientists–and most lay people paying any attention at all (y’know, the “educated intelligent” segment of the populace!)–would understand to be directed at how life came about four plus-minus BYA. I suspect that the use of this particular phraseology is meant to sweep more broadly than the more usual phraseology–it’s specifically intended to give comfort to Young Earth Creationists.

These are folks who don’t have any questions or concerns about how life came about 4 BYA, whether goddidit then or “evolution” did it. Nope, they’re the folks who don’t believe the evidence for any of this evolution malarkey–not descent with variation, not common origins, and certainly not a 4 BYA natural origin of simple life, which then evolved over deep time into all the creatures represented by fossils and all the critturs alive today.

Oh, they believe that today’s “living things” had an “origin” all right, but in the form of the distinct “kinds” that are alive right now, all of which originated just a few thousand years ago in a distinctly non-natural event.

Once you unravel that level of the code, deliberately-designed by the anti-evolution partisans, the religious intent underlying the innocuous-sounding sticker becomes impossible to overlook. And that’s what those industrious law clerks need our help in understanding.

As an evolutionary biologist, we need to understand that “Evolutionary Biology” says nothing about origins, only that a population can, under certain conditions, lead to alternate populations that are reproductively isolated from each other. Reproductive isolation leads to independent evolutionary lineages. Just because different lineages happen to be different ‘species’ doesn’t mean that we can really tell them apart (go back and review the Rana pipiens issue). Cryptic speciation is a dominant force in the evolution of species diversity, especially for plant/herbivore systems.

What strikes me as odd are the facts that: 1) Evolutionary biologists are almost _never_ included in these discussions.

2) ‘Arm-chair’ evolutionists abound, but I would venture a guess that adaptive landscapes and topologies are entirely foreign to this discussion but play a pivotal role in understanding the ‘mechanisms’ of evolution.

3) Until the fundies understand Fishers fundamental theorem of natural selection, this whole thing is a mute point. Unfortunately, you cannot understand a complex system (not in the dumbed down Dembski sense, but as a complexity theorist would describe it) without understanding the math.

rjd, phd

OK, so I’m a nitpicker but, with apologies to rjd, he’s not the only one here I’ve seen mis-use or mis-type this word, so maybe this will be of slightly broader interest:

mute means “silent,” “incapable of speech” whether by choice or not. That’s why it’s that button you push on your phone or remote when you want to turn off the sound. Asked to explain the knife dripping with blood found in his hand at the scene of the crime, the accused remained steadfastly mute.

moot, which has a different vowel sound (“ooh” not “yew”), is the word we use when an issue–often a legal issue–is no longer a “live” or “real” one, or is one that is not yet “ready for prime time,” thus debatable, a subject for discussion rather than action. The issue of whether to grant clemency for Tookie Williams is now moot–he was executed at midnight. Just kicking around an issue that’s of no immediate import can sometimes be desciribed with this term: The Senate mooted the issue of environmental protection.

There’s also an obsolete legislative body from, like, Anglo-Saxon times, that went by the name of “moot.” Which I suspect is where Tolkien came up with “Ent-moot”!

See, it may be nit-picky, but it can still be fun!


I agree, but the irony of using mute for moot in that context is what I was going for here, the “quiet point” not the irrelevant argument. There is a lot of discussion and ongoing research within the context of how natural selection actually operates (e.g., the ‘it is only a theory’ bits), meaning that it is not “no longer a live issue” amongst the practitioners. In fact, I make a living making sure the advancement of understanding in how these processes operate is continually funded.

The point that is lost here is that the real ‘controversies in evolutionary biology’ are not the topological issues the fundies make them out to be nor are they the bending of etiological histories that allow them to build up straw men, rather they are the context, granularity, and tempo of how evolutionary processes operate in real populations. As such, without a proper understanding of the context, their arguments are more aptly described as “silent” rather than “no longer live” as they have yet to really be live in the first place. I do apologize for mixing irony into the mix.


Nope, sorry. Joey on “Friends” got it correct. The issue is “moo”. It’s like a cow’s opinion. It doesn’t matter.


My Merriams-Webster online diction says this for “moot” the noun:

1 : a deliberative assembly primarily for the administration of justice; especially : one held by the freemen of an Anglo-Saxon community 2 obsolete : ARGUMENT, DISCUSSION

So I’m thinking Tolkien was just invoking the obsolete meaning of “discussion” when he coined the term “Ent-moot,” since it fits with them being an ancient (and linguistically behind the times) species.

H. Humbert, Stieviepinhead et al.,

Tolkein was English, not American. In the OED, one of the definitions of moot is this: “A meeting, an assembly of people, esp. one for judicial or legislative purposes. Also: a place where a meeting is held.”

The etymology is from northern Europe, and Tolkein would have been aware of it (he was an expert in middle English, which has a large influence from northern Europe: Anglo-Saxon and Norse for example).


Judge Carnes needs to know that Newton’s and Einstein’s theories of gravity are theories and not facts, in spite of the fact that the judge’s gavel will fall to the ground because of gravity if he lets go of it. Why don’t we have a sticker for that too?


I nominate the word “scientific model” to stand in place of “scientific theory”. Evolution - the theory - is an everchanging and growing, robust working Model of our understanding of how evolution - the fact - occurs.

I nominate “model” not because scientifically it is a better word than “theory”, but because it is clearer for the lay populace at large. The popular use of the word “theory” is more akin to “hypothesis” and it is this use that the Judge Carneses of the world get confuse by when IDers and creationist set it up in a false dichotomy with the fact of “descent with modification”.

It shouldn’t be that hard to explain to such a person that the reality of evolution - like the reality of gravity - is a fact. And then to explain that the Model of Evolution is the exploration and hypothesis-testing mechanism for explaining HOW evolution occurs.

This would normally be where “Theory” is used but it just confuses the pants off of the general population, and obviously, Judge Carnes because they think it refers to the “hypothesis” meaning. The IDers live on this confusion. It’s infuriating.

Rodney Dyer said in Comment #63201 on December 16, 2005 @ 07:40 PM

“What strikes me as odd are the facts that: 1) Evolutionary biologists are almost _never_ included in these discussions.”

Since evolution deniers don’t want to include evolutionary biologists(e.b.’s) in their efforts to censor science from science classes, this is hardly accidental. The facts that e.b.’s would force them to face would be to inconvenient.

sincerely, paul

I’ve only glanced at the posts on Cobb, and I don’t know whether this has been pointed out or not, but we practically could not have drawn a worse panel of Circuit judges. The very conservative Judge Carnes has telegraphed exactly which way he’s leaning, and Judge Pryor’s opinion on church-state separation is widely known. Pryor has expressed support for school prayer, and was one of Bush’s recess appointments.

Judge Hull is a Clinton appointee, so she’ll probably be writing the dissent (yes, Judge Frank Hull is a woman). In any case, a split Circuit will potentially help the Supreme Court decide to accept cert and take the case (I figure it’ll be appealed either way, but I’m guessing now it’s going to be appealed by the ACLU).

I nominate the word “scientific model” to stand in place of “scientific theory”.

The creos will just switch over to saying, “It’s only a model.” Which, while certainly much, much funnier for us in the short term, will quickly become just as infuriating as “It’s just a theory.”

Re: Posted by scott pilutik on December 19, 2005

Does it seem to anyone else that the judges are laying the groundwork for an Alito interpretation of the first amendment? I’ve been trying to get some feedback from various places, but nones forthcoming. Do I have this wrong? Alito’s famous decision on an establishment clause argument is that the state isn’t establishing religion so long as the religious message is balanced with other messages. This seems to be what Carnes is getting at with all the questioning about the good evolution education. They’re going to take it back to the “equal time” debates; exactly what the DI has been working toward.

improvius Wrote:

The creos will just switch over to saying, “It’s only a model.”

I now imagine a collection of scientists, a la Python, standing in awe before the wonders of life that science has revealed…

Scientist #1: “Evolution!”

Scientist #2: “Evolution!”

Scientist #3: “Evolution!”

Disgruntled Creationist: “It’s only a model.”

re: Mike’s very good question as to whether the judges are laying the groundwork for an Alito-like establishment clause intepretation.

I don’t think that’s where they’re going because Alito’s ‘equality’ idea pertains to admitted religious expression; e.g., scenarios where a religious group wanted access to state facilities. There is no argument here by the school board that its right to express itself religiously is in peril. It’s denying there is any religious expression at all. In that sense, the ID cases are atypical from most establishment clause cases. The issue isn’t one of balancing rights of parties as much as it detecting the presence of religion period.

If you’re a judge ruling against the ACLU in Cobb, you’re going to narrow the permissible evidentiary scope, as Carnes did: ‘I only see words on a sticker that don’t say anything about religion. Why did the district court permit all this circumstantial material requiring inference upon inference in?’ - Hull will say, ‘of course you have to look to all this circumstantial evidence; how else do you ascertain why only this book was targeted?’.

I’m shortchanging the reasoning of what the opinions will read like, but those will be main themes. The majority’s job will be difficult, b/c the district court opinion was written very well, and alluded very specifically to the evidence, meaning that the circuit court cannot rule de novo on most any issue, but rather whether the district court abused its discretion in ruling as it did, or whether it was clearly erroneous when considering evidence.

In other words, the district court is given broad deference. That said, both Pryor and Carnes are conservative judicial activists and will probably find a way to do it, probably by ruling that the district court went too far in its search for answers as to religious purpose and effect. Ironically, Carnes struck down Moore’s 10 Commandments case, and was on the majority in Schiavo. But this case presents a more novel legal issue than the well explored terrain that lay beneath Moore and Schiavo.

PS: I just got an auto-email from the PA court - Judge Jones’ opinion in Kitzmiller v. Dover will be made available tomorrow.

It should be noted that Judge Jones’s ruling in the Dover case cites the _Selman_ ruling at least a dozen times – a fact which should not be lost on the Cobb County appellate judges.

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This page contains a single entry by Reed A. Cartwright published on December 16, 2005 4:22 PM.

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