The Discovery [sic] Institute has brought forth Prof. David DeWolf of Gonzaga University to evaluate the Kitzmiller case. Interestingly, DeWolf doesn't complain about Judge Jones' finding that the Dover ID policy violated the Establishment Clause. But he is bothered that Jones "went on to address the question of whether intelligent design is science." But this is not improper for a court to do.
As I've explained, courts are called upon all the time to determine whether things fall into one category or another. Courts have been asked to decide whether, for instance, a radio is a "musical instrument," Dunbar v. Spratt-Snyder Co., 226 N.W. 22 (Iowa 1929), or what the definition of "mathematics" is, John A. Steer Co. v. United States, 53 C.C.P.A. 67, 70 (Cust. & Pat. App. 1966), or what the definition of "fortune telling" is, Davis v. State, 160 N.E. 473, 475 (Ohio 1928), or whether softball is an "athletic contest," Curtis v. Board of Educ. of Sayre Public Schools, 914 P.2d 656, 659 (Okl. 1995), or even what the definition of "art" is. In re Leonardo, 102 B.R. 202, 203-04 (E.D. Ca. 1989). Courts are rather often called upon to decide whether something is a "religion" or not, see, e.g., Kaufman v. McCaughtry, 419 F.3d 678, 681-82 (7th Cir. 2005); Borzych v. Frank, 2005 WL 2206785, at *11-12 (W.D. Wis. Sept. 9, 2005); Stately v. Indian Community School of Milwaukee, Inc., 351 F.Supp.2d 858, 867-69 (E.D. Wis. 2004). And, of course, courts have adopted workable definitions of "science," as well. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593 (1993). There's no reason in the world why determining whether softball is an athletic sport is within the proper realm of the court, but determining whether ID is science is not.
In Theriault v. Silber, 453 F.Supp. 254 (D.C. Tex. 1978), the court was called upon to decide whether the "Church of The New Song"---a prison-devised religion which taught that inmates must be served steak and wine---was a religion or not. The court found that it was "not...a religion, but rather...a masquerade designed to obtain First Amendment protection for acts which otherwise would be unlawful.... [T]he unmistakable stench of the skunk is found eminating from that which petitioner has declared a rose." Id. at 260. Why can a court do this, but not determine whether ID is, or is not, religion, or is, or is not, science?
DeWolf complains about Judge Jones' finding that one can be a Christian and still believe in evolution. Sure, the court heard testimony from theologians on the matter, but that should not have persuaded the court, writes DeWolf; the idea that one can be both a Christian and a believer in evolution is "like a judge assuring us that it is 'utterly false' that Judaism is inconsistent with eating pork."
Now, that's an interesting analogy. Suppose that that question were to come before the court. How would the court determine whether or not eating pork is consistent with kosher rules? Well, it would take testimony from rabbis, or from historians who are experts on Judaism. It would consult learned treatises, even religious scriptures. It would take notice of matters of common knowledge in the community. And it would learn in the process what kosher requirements are. In Schlesinger v. Carlson, 489 F.Supp. 612 (D.C. Pa. 1980), an Orthodox Jewish prison inmate complained that he was not being allowed to observe Passover as his faith required. The court took the kind of evidence I've described, including testimony of three rabbis, and it concluded that
Jewish dietary laws applicable during Passover require that only foods certified kosher for Passover by appropriate Rabbinical authorities be eaten. This requirement is based on the Biblical injunction that during Passover no chometz be eaten. A grossly simplified explanation of chometz is any food containing leavening agents, certain entire groups of food, and in general any food which is not prepared in a manner which assures that no forbidden matter is introduced into the food. In addition, the utensils used to prepare, cook, serve and eat the food must not have been used at any other time of the year. To do so renders them not kosher for Passover. Further, the kitchen itself and equipment such as ranges, sinks and preparation tables must be made kosher for Passover. These dietary laws apply in addition to the usual kosher laws which again, to oversimplify grossly, prohibit the mixing of dairy and meat products as well as the consumption of certain types of food, most familiarly pork products.
Id. at 614. That is to say, it is entirely proper for a court to determine whether eating pork is or is not consistent with Judaism.
Likewise, there is nothing wrong with the court determining on the basis of the evidence before it, that religion and evolution are not necessarily mutually exclusive. Now, Prof. DeWolf himself might disagree with its decision---he might believe that it is so glaringly obvious that you cannot be a Christian and a believer in evolution at the same time, that it is abusive for the court to reach the conclusion it reached. That's certainly his prerogative as a religious man. But he is wrong to suggest that somehow these kinds of determinations are beyond the court's proper function.