And ID even has a historical pedigree, going back even before Darwin climbed aboard H.M.S. Beagle. One of the books Darwin read as a student was William Paley’s Natural Theology. “The basic premise … was that the glories and complexities of living nature were to be seen as prima facie evidence of God’s creative hand,” writes Keith Thomson, an Oxford philosopher and historian. “Natural science and theology were not at odds, therefore, but complementary.” Paley’s work lives on in ID most directly in his analogy of the universe as a watch, whose existence must needs imply a watchmaker. In 1996, Thomson points out, the analogy was cited in defense of ID by Michael Behe, a biochemist and prominent ID proponent who one day would be reduced to stammering incoherence in a Pennsylvania courtroom.
In fact, ID sells itself so reasonably that hard-core creationists disdain it as so much materialist backsliding. (In his museum outside Cincinnati, where the humans and dinosaurs romp together, Ken Ham is more withering in his criticism of ID than Bertha Spahr ever was.) However, in its origins and goals, ID is creation science with a thicker scientific gloss.
It comes out of the work of the Discovery Institute, founded in 1990 to promote new ideas in fields like bioethics, ideas that nonetheless would conform to hard-line conservative ideals. As Gordy Slack points out, the institute floundered for a while, whipsawing between enthusiasm for scientific progress and the rigid demands of a biblical worldview. It was brought to the light, finally, by one Philip E. Johnson, who immersed himself in the study of how to counteract what he saw as the self-destructive “materialism” of modern American culture. Based in the institute’s Center for the Renewal of Science and Culture, institute scholars, few of whom have actually worked in the physical sciences, laid siege to their targets. These included almost all of modern America, but especially the secular world of the sciences.
Slack quotes extensively from what he calls the “Wedge document,” a Discovery Institute fund-raising memo that leaked in 1999, and which pretty much gives the game away. The goal of the institute, it says, is to reestablish “the proposition that human beings are created in the image of God [which is] one of the bedrock principles on which Western civilization was built…. Yet a little over a century ago, this cardinal idea came under wholesale attack by intellectuals drawing on the discoveries of modern science.” The document goes on to describe how the CSC—it had dropped the “Renewal” part of its name like a hot rock because of the word’s religious connotations—would bring down Darwinism, first by publishing its own “research,” then by selling that research through the broadcast media. This process would help build up “a popular base of support among our natural constituency, namely, Christians.”
In short, ID, because it is a sales pitch, was relying on the Three Great Premises to carry the day. ID would be sold in such a way that people would speak loudly and authoritatively in its support; then, enough people would believe it to make it a fact, and they would believe it fervently enough to make it true. As Gordy Slack writes, “Whether they have paved the way for a scientific revolution or not, they have unquestionably brought about a revolution in public perception … they have made ID a household acronym, and have given an eccentric theory an aura, in some circles anyway, of intellectual and scientific credibility.”
As deftly as it sold the new idea, the Discovery Institute treated it very delicately. The institute did not want ID measured by the Lemon test or judged against the standards of the Aguillard decision too soon. When the proponents of ID on the Dover school board announced their intention to defend a lawsuit brought against them by the ACLU, the Discovery Institute argued against the move. But Dover was too deeply enmeshed in the controversy to untangle itself. The fight over ID was a fight over schools, and morals, and income, and class, and over the primacy of political and cultural tribes. Like so much that happens in Idiot America, where everything is judged by how well it sells, it was a war between proxy armies. The Discovery Institute’s one mistake was to believe the fight could be avoided. In his office in Harrisburg, Judge Jones still thought the case might never come to court. That hope lasted as long as the first meeting he had with both sides.
“I usually try to check the body languages of the attorneys and see whether I should ask them to come into chambers, to see if I can resolve it,” he recalls. “You could tell everyone was polarized. There were a lot of lawyers there and their body language was such that I thought, ‘Well, I’m not even going to try to settle this.’
“Through the summer of ‘05, though, I thought cooler heads might prevail and they’ll find a way to work this out. Right up until the trial convened, I had some sense or hope that it might work out. But, it did not.” On October 7, 2005, the case of Kitzmiller v. Dover Area School Board opened. On the eve of the trial, a local pastor named Ray Mummert had drawn the best map of the battlefield. His summing-up was reported all over the country. The fight within the Dover school board went worldwide.
“We’ve been attacked,” Mummert said, “by the intelligent, educated segment of our culture.”
IT did not take long for Judge Jones to suspect that he was being asked by the Dover school board defendants to pass judgment on the efficacy of a marketing plan, and not on the constitutionality of their actions, let alone on empirical scientific truth. What was playing out in front of him had very little to do with the law and almost everything to do with local politics driven by anger that was in the fullest way “faith-based,” in that the people pushing intelligent design went out of their way to deny, preposterously, that any of this had anything to do with religion.
Bill Buckingham, a member of the board’s curriculum committee and a minister, denied in a pretrial deposition that anyone had ever mentioned creationism during the fight over the biology curriculum, only to be confronted during his testimony at trial with a videotape of himself using the word in an interview. Another revealing witness was the school board chairman, Alan Bonsell, whose answer regarding who donated money to purchase copies of Of Pandas and People for the high school completely contradicted what he had said in a deposition. Judge Jones stepped in and reduced the man to a blithering mess on the stand.
“It was a significant issue because they had passed the hat at a church to get those books,” Jones explains. “And that goes through the Lemon test that we use that the books were being used for a religious purpose. They deliberately, in my view, lied.
“Your mind does wander during a trial, and there are different times when your curiosity is piqued. That is the moment when I listened for an extended period of time to Bonsell’s testimony. He was, of course, the president of the school board. My mind didn’t wander at all during his testimony. If Bonsell and Buckingham had answered truthfully in their depositions, I think there was a good possibility that counsel for the plaintiffs would have sought an injunction and shut down the policy before it even started. They did not answer truthfully.”
In Jones’s view, the members of the Dover school board had volunteered their town as a test market for those who wanted to sell ID nationwide. And while both sides in the case had brought formidable legal teams into his courtroom—“It was ‘The Charge of the Light Brigade’ in there,” Jones laughs—he cast a particularly wary eye on the attorneys from the Thomas More Law Center, a right-wing legal foundation funded originally by Thomas Monaghan, the ultramontane Catholic founder of Domino’s Pizza. The Thomas More lawyers, appearing on behalf of the defendants, were working for free and that may have blinded the people from Dover to the true cost of the action they had undertaken to defend. Under federal law, the loser in a civil rights action has to pay the costs of the litigation, which can run into millions of dollars.
“I was discouraged by the fact that this community of good people, you know, they pay their taxes and all, and they maintained a generally good school system, were going to end up paying I don’t know what the legal fees were going to be,” Jones says. “I thought, ‘It’s going to come to me to tag this school district with
potentially a couple of million dollars in fees.’”
The More Center’s interests in the case went far beyond a parochial scuffle over textbooks. The center wanted a case, any case, through which it could litigate intelligent design all the way up the system until it could get the issue before what the More Center believed was an increasingly sympathetic Supreme Court. Further, the center’s strategists believed that they could use an ID case to relitigate a whole host of holdings involving the First Amendment’s “Establishment” clause with which the center and its backers disagreed. Among those holdings were the Lemon test and the Aguillard decision. The latter, in shutting down creationism in Louisiana, had made necessary the invention of intelligent design. Styling itself the “Christian answer to the ACLU,” the More Center thought it had found its dream vehicle in Dover. Jones thought they were playing the town for fools.
“When you’re not paying your counsel, you think there’s no price to be paid,” Jones explains. “It’s pretty clear now that then comes the Thomas More Law Center, and they jump in the cockpit and they say, ‘We’ll represent you through this litigation.’
“There was a disconnect that we didn’t notice until the trial started. You could see what happened where the Discovery Institute said to the Thomas More Law Center, ‘Don’t do this. Don’t litigate this case. You’re going to get us killed here.’ And they shoved the Discovery Institute out. The Thomas More Law Center was litigating this case for the Supreme Court of the United States, it is quite clear. Justice [Antonin] Scalia has had a number of dissents in Establishment clause cases. And the way they phrased their case, the way they structured their briefs, all of that went to Scalia’s dissents.
“You could tell. I was fully familiar with all the cases. I think their strategy was, ‘Look, if Jones dings us, we’ll just take it up. We will go to the Supreme Court. Here’s the case where we are going to eviscerate the endorsement test as it relates to the Establishment clause.’”
Almost nothing went right for the school board and its legal team. On cross-examination, the members of the board sounded like people asked to explain why they sold their public responsibility for a bag of magic beans. Far removed from the niche market of conservative religion in which it was sold, intelligent design and its proponents came off little better. Michael Behe, one of the most influential scientific voices in support of ID, spent several uncomfortable hours being demolished by a plaintiff’s lawyer named Eric Rothschild.
Behe’s major contribution to what is termed the scientific basis for ID is “irreducible complexity,” the idea that, if you could discover a system from which you could not remove one element without demolishing the system, then that system could not have evolved through natural selection. (Darwin, it should be said, agreed.) Behe’s favorite candidate for this was the flagellum. Flagella are the tiny filaments that allow bacteria to swim. Behe argued that the flagellum was made up of so many parts that the removal of any one of them would destroy its function. Being “irreducibly complex,” the flagellum refutes Darwin and implies the existence of an intelligent designer, who may or may not be God; Behe wasn’t saying.
The role of bacterial flagellum got a long workout in Jones’s courtroom. Scientists explained at length how Behe was wrong about it. And under cross-examination, Behe stumbled badly, admitting at one point that a definition of science he had given during his pretrial deposition would fit astrology as well as it fit ID. It went downhill from there. But the worst damage done to the defendants’ case centered around the textbook that had started it all, Of Pandas and People, not because it made the proponents of ID and their lawyers look like zealots, but because it made them look like clowns.
Barbara Forrest, a philosopher and vociferous critic of the Discovery Institute, had been following the evolution of the anti-evolution movement for years. She’d written scathingly about creationism, “scientific creationism,” and ID. Based in Louisiana, Forrest was more than familiar with Aguillard. Just about the time that decision was being handed down, a new edition of Of Pandas and People was being prepared. (One of its authors, Dean Kenyon, had testified in Aguillard on the creationist side.) When the case threw out creationism, the authors of the book went to work adapting it. The Dover defendants based their entire case on the assertion that ID was science and not religion; Barbara Forrest blew the whistle.
She’d discovered that, in the aftermath of the Aguillard decision, Of Pandas and People had been run through a software program designed to replace specific creationist language with that of intelligent design. Gordy Slack points out that the process was as full of holes as the science it purported to explain: “Some careless editor or author must have tried to do a search-and-replace without taking sufficient care. They tried to replace ‘creationists’ with ‘design proponents’ and ended up creating an infertile hybrid: ‘cdesign proponentsists.’”
Jones had come to believe that he was being asked to pass on the free-speech rights of con men. His job had turned into a matter of evaluating the efficacy of a sales pitch. He thought he was being asked to judge religion as science and science as politics. Whatever it was, it wasn’t the law, and he was determined to judge this case under the law.
“I think ‘mad’ is an overstatement,” he says. “I wanted to make a point. I think there were times during the trial that I felt a great deal of passion about the case and I wanted to reflect that in the opinion.”
He did not believe that the pro-ID people had dealt with his court in good faith, and he did not believe their hired lawyers had the best interests of the town in mind. Over the summer of 2005, while the trial was proceeding, the citizens of Dover seemed to come to the same conclusion. In November, they voted out the entire school board but for the one member not up for reelection. An anti-ID majority rode a huge turnout to victory. Politically, if Jones ruled against intelligent design, the fight was over. This new board was not going to finance the appeal all the way through the federal court system.
By this time, Jones was bunkered with his staff, writing his decision in the case. One of his clerks, Adele Nyberg, pulled together the post-trial submissions from both sides and began to sketch out a rough draft from a preliminary outline Jones had prepared. Nyberg wrote some of the opinion and Jones wrote some of it. They swapped ideas back and forth. It was a long, grueling process.
“You just close the door and work on it,” Jones recalls. “I can’t tell you the number of drafts we went through.” He kidded Nyberg that she should look at the drafting of the opinion as the vegetable she least liked to eat. “I kept finding edits and corrections I wanted to make,” he says. “At the end, I couldn’t look at the thing.”
Every draft had one thing in common, though: Jones was angry, and it showed. He took one version home to show his wife, who told him it was too strident. He toned it down, a little. On December 20, 2005, he released the opinion to the world, and into the media maw that had gaped outside his office for going on two months.
If the earlier drafts were tougher, they must have been tied around a brick. The opinion ran 139 pages, and Jones determined that teaching ID was unconstitutional on the third page. Then he got going. His language was blunt and devastating. He found ID ludicrous as science and preposterous as law. He saw the attempts to foist it on high school students as the worst kind of bunco scheme, dealing harshly with the notion of “teaching the controversy”—a “canard,” he wrote, designed merely as the next form of camouflage by which creationism hoped to insinuate itself into the public schools. ID, Jones concluded, was “a mere re-labelling of creationism.” He saved his most memorable scorn for a passage in which he described the damage the fight over ID had done to the people of Dover.
“This case came to us as a result of the activism of an ill-informed faction on a school board,” Jones wrote, “aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the board to adopt an imprudent and ultimately unconstitutional policy.<
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“The breathtaking inanity of the board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.”
That “breathtaking inanity” rang the loudest. (In fact, the phrase had survived from the earlier draft that Jones had revised at the suggestion of his wife.) For a federal judge, language like this was the equivalent of throwing a pie in someone’s face. Commentators on both sides of the issue seized on the line. The opinion was released at 10:30 in the morning. By 10:45, people were yelling about it on CNN.
“I have these twenty-something clerks,” Jones recalls, “and they kept looking at me and looking at the TV like, ‘What in the hell have we done?’ I was very satisfied that I’d got the decision out before the end of the year, so there’s a sense of, Well, you cleared the deck. You did the heavy lifting.” Channel surfing at home that night, Jones came upon Bill O’Reilly’s nightly show on the Fox News Channel. O’Reilly and his guest, a former judge named Andrew Napolitano, chewed on Jones for a solid ten minutes. By the end of it, O’Reilly was calling him a “fascist.” Subsequently, the religious broadcaster Pat Robertson called him “absurd.” The next day, the death threats started rolling in.
“They turned them in to the U.S. marshals, and the marshals said, immediately, that they were going to put me under twenty-four-hour protection,” Jones says. The marshals set up a command post at his house. One of them went out with Jones’s wife when she walked their dog. “I figured if I ever got a threat, it would be because I sentenced a crack dealer,” Jones said.
Gradually, the furor died down. In January, however, the ultraconservative activist Phyllis Schlafly wrote a syndicated column in which she pointed out how vital evangelical voters had been to the election of George W. Bush, and Bush had appointed Jones, and Jones had stabbed the evangelical community in the back. However, the notion that he owed his allegiance to some political team got Jones angry enough to speak out. “I thought, ‘Enough,’” he says. “I started to talk about exactly how judges decide cases. I wanted to pivot off that and talk about my experiences, and the experiences of other judges, with cases like this.
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