Kitzmiller v Dover, Ten Years Later: Dennis Venema and Ted Davis in Conversation (Part 1)

| By and (guest author) on Reading the Book of Nature

EDITOR’S NOTE: Ten years ago, in a small town in central Pennsylvania, a trial unfolded that has had a massive impact on the science and faith conversation in America. We reprinted Ted’s 2006 article “Intelligent Design on Trial” on this blog several weeks ago, but now, we’d like to present a more in-depth look at what happened in that courtroom, and how the consequences of the Kitzmiller v. Dover ruling have reverberated into today. Joining Ted in this discussion is BioLogos fellow of Biology Dennis Venema. Imagine this conversation as listening in on a chat between two friends, who just happen to both be experts on the ID movement. Ted does most of the talking in this article, but stay tuned for a follow-up piece by Dennis focusing on the scientific side of the trial, to be posted on Dennis’s blog.

Dennis Venema: It’s been a decade since the Dover trial. Remind me of the basics of the case. What was at stake, and what were the different sides?

Ted Davis: The trial took place in the fall of 2005, when the parents of some students in Dover (PA) High School sued the school district after the implementation of a new policy that required the reading of a statement presenting Intelligent Design (ID) as an alternative to evolution in biology classes. They objected to that policy on constitutional grounds, seeing it as a covert way to get creationism (which is seen as a form of sectarian religion by the courts) into public schools.

Originally, certain members of the school board had indeed wanted to present young-earth creationism alongside evolution, but their lawyer told them it would be illegal. When the Discovery Institute (DI), the largest pro-ID organization, heard about this, they contacted one of the board members, advising the district not to require the teaching of ID. However, the DI sent them copies of the book and DVD, Icons of Evolution, which the science teachers in the district were required to view. So the DI didn’t completely separate themselves from the situation.

After this, a board member contacted the Thomas More Law Center in Michigan, a group of (mainly or entirely) Catholic lawyers who litigate cases in which they perceive that the religious freedom of Christians is threatened. Working with Richard Thompson from the More Center, the board approved the statement, which not only talked about “gaps” in evolution but also invited students to study the pro-ID textbook, Of Pandas and People; dozens of copies were placed in the high school library by a donor. That’s why this is often called the “panda trial,” analogous to the famous “monkey trial” involving John Scopes in 1925.

DV: Why was the trial so important in the science-faith conversation? 

TD: Because it has loud overtones similar to those that came out of the Scopes trial. It’s a big piece of evidence that many Americans still believe that evolution is inherently anti-religious. Bryan believed that public schools violate religious neutrality when they teach evolution at all, so he tried to remove it entirely from the curriculum. Since the rise of creationism in the 1960s and 1970s, opponents of evolution have sought instead not to remove evolution--even though I think many of them still want that—but to require or encourage the inclusion of alternative views alongside evolution, in order to show students that it’s OK to doubt evolution. So far, at least, the courts have vetoed that strategy, but the attitude underlying it retains widespread support. 

There are too many implications of this for the larger science-faith conversation to for us to sort it out in one conversation. Surely, one of the biggest implications is that a more persuasive case needs to be made among Christians for an alternative to the usual alternatives—for the view BioLogos holds, that evolution and Christianity are not actually deadly opponents.

DV: Ten years on, what memories of the trial have stayed with you?

TD: Actually what I remember most has nothing to do with the guts of the case. I attended four days of testimony, and on certain days an artist sat near me in the benches where we spectators sat. She brought a stuffed panda one day and made a picture that put the panda in the witness box. It was pretty funny, to tell the truth.

For me, the unforgettable moment in the trial itself happened when Catholic theologian John "Jack" Haught of Georgetown University, a key witness for the plaintiffs (the side opposed to ID), was cross-examined by the lead attorney for the defense (the pro-ID side), Richard Thompson, who is also a Catholic. Toward the end of the cross-examination, Thompson reached under the podium, brought out a copy of the Catholic Catechism, and began questioning Haught about central Christian doctrines, such as the Virgin Birth and the Resurrection. In his pre-trial deposition, and again in the courtroom, Haught was unable to affirm a traditional understanding of either doctrine, as taught in the Catechism. For example, in his opinion, a video camera would not have captured an image of the risen Christ in the upper room.

Although I was surprised by this line of questioning, taking place a few feet in front of me, I wasn’t at all surprised by Haught’s answers. From my general knowledge of science and religion and my specific knowledge of his views and attitudes on other matters, I had pretty much inferred his position many years ago. After I’d reached that conclusion, I asked him privately whether he believed that affirming the bodily Resurrection was crucial for Christian faith. I don’t remember the exact words, but the gist of it is that he didn’t think so. Until he spoke directly to this at trial, however, I kept that to myself as something he said privately. I no longer hesitate to talk about this. I mentioned it in one of my columns, in which I stressed the deep differences between BioLogos and thinkers like Haught, on this crucially important matter. Let me add that I still have a very high regard for Jack Haught, both as a person and as a scholar, and I wish I had more chances to talk to him face to face. His knowledge of science and religion is almost unequalled, and he deals very graciously and fairly with differences of opinion. If only I could say that more often.

Interestingly, two more key players at the trial were also Catholics—the lead witness for the plaintiffs, cell biologist Ken Miller of Brown University, and the lead witness for the defense, biochemist Michael Behe of Lehigh University. I’m pretty sure that both of them are less hesitant than Haught to affirm the bodily Resurrection, but let’s move on.

DV: The DI has adamantly denied that they were looking to Dover for a “test case” for ID, yet in their strategy in the years leading up to the case they certainly did seem to want such a test case (going so far as to publish legal guides and so on). It seems to me that they initially thought Dover could be a winner for them, but then realized the case had clear evidence of creationist intent by the Dover Board. What are your thoughts?

TD: As I said before, the DI did have a small role in educating Dover teachers about ID, but they also tried to persuade the district not to require anyone to mention ID in a class. In general, however, the DI encouraged school districts to think about potentially legal ways to raise skeptical questions about evolution in science classes. A prominent example is an article by David DeWolf, Stephen Meyer, and Mark DeForrest, “Teaching the Origins Controversy: Science, or Religion, or Speech?” Originally published in the Utah Law Review (in 2000), the DI distributed copies to interested parties. I brought mine with me, anticipating a question about this. It postulates an imaginary teacher, “John Spokes,” who on his own initiative wants to teach students about ID, and argues that a school district would not be legally required to prevent him from doing so. The final paragraph boldly proclaims, “When school boards or biology teachers such as our hypothetical John Spokes [sic] take the initiative to teach, rather than suppress, the controversy as it exists in the scientific world, school board lawyers should encourage, rather than resist, this more open and more dialectical approach. Indeed, the time has come for school boards to resist threats of litigation from those who would censor teachers like Spokes, and to defend their efforts to expand student access to evidence and information about this timely and compelling controversy.” If that wasn’t an invitation to create test cases, I don’t know what it was. Thompson has said that he was influenced by this type of thinking, emanating from the DI, when he advised the school board to mention ID as an alternative to evolution.

Now, it’s clear that the DI wanted teachers to be free to “teach the controversy,” as they like to say—that is, to be free as individual teachers to tell students that some scientists think that the evidence supporting Darwinian evolution is not as strong as it’s typically represented to be. And, that’s basically what the Dover statement said: that students ought to be told that the case isn’t airtight, so feel free to explore this other idea. As the statement put it, “Gaps in the theory exist for which there is no evidence,” and “Intelligent design is an explanation of the origin of life that differs from Darwin’s view.” I understand that the DI wanted just a laissez-faire policy toward ID, not a requirement to mention it, but sowing doubt about evolution is their stock-in-trade. They obviously push ID as an alternative view to common ancestry, so it’s hard to be too critical of Thompson here. Nevertheless, by ignoring the concerns of the DI, the school board denied American jurisprudence a proper test case for ID in the schools. If I appear to be talking out of both sides of my mouth, it’s because the story of this trial calls for some nuance.

At the same time, the defense might have been able to put on a better case for their claim that ID is genuinely scientific, if the DI hadn’t urged their people and some other major supporters of ID to withdraw from the trial after preparations had begun. Thus, Stephen Meyer, William Dembski, and John Angus Campbell withdrew without being deposed, while the late Warren Nord was deposed but didn’t testify at trial. However, Scott Minnich and Behe stayed the course. Someone close to the plaintiffs told me during the trial that Campbell was potentially the single most dangerous witness, from their point of view: it would be hard effectively to counter his arguments about democracy and free speech in science education. It would have been interesting to hear that particular cross-examination, but it never happened.

At some point before or during the trial—I can’t remember exactly when, and I can’t remember what led up to it—I had a long conversation with Thompson. He was interested in my view that one can make a decent case that ID is a legitimate talking point in the philosophy of science; probably nothing more than that, but at least that much can be said for it. For example, at that time there was a growing body of refereed academic scholarship about ID, both pro and con, in serious places, such as articles in the journal Biology & Philosophy and essays in books from respected university presses, including Cambridge University Press, arguably the top publisher in the world for philosophy of science. Indeed, Dembski’s famous book, The Design Inference, was published by Cambridge after passing peer review. I told Thompson that the only potential winning hand for his side was to stress this point: Pennsylvania teachers are required to teach students about the “nature of science,” which is educational jargon for philosophy of science. ID is being discussed in professional literature related to philosophy of science. Ergo, a teacher might have a legitimate secular educational purpose for discussing ID as an example of a current controversy in philosophy of science—but not as a scientific alternative to Darwinian evolution. Thompson didn’t agree. His case was based substantially on convincing the judge that ID is in fact a scientific alternative to evolution, which in my opinion was not true then and is still not true now. I told him that was a losing hand, and it proved to be such.

The emphasis I just placed on ID needing to having a secular educational purpose was based on established jurisprudence at the time, prior to the Kitzmiller trial. A year or two before the trial, I had arranged for Edward Larson, author of the definitive history of creationism and the law, to give a seminar in Harrisburg on creationism and the law. He stated that the Supreme Court had left open the possibility of teaching alternatives to evolution, as long as there was a clear secular purpose for doing so. As it happens, an administrator from Dover attended Larson’s seminar—a fact that came out at trial—but it’s abundantly clear that Dover never had a clear secular purpose for doing what they did. Whether ID will get another day in court, down the road, remains an open question, but on this particular day a poor hand was overplayed. 

DV: The DI has long complained that Judge John Jones, the trial judge, overstepped his authority to decide that ID was not science. What do you think?

TD: As I wrote at the time, I simply don’t agree with the related claim (also from DI) that Judge Jones was just grandstanding as a judicial activist who wanted to become famous. In fact, both sides asked the judge to make a broad ruling about ID in general, not simply a narrow ruling about what happened in Dover. Granted, the judge didn’t have to do that, but both sides structured their cases with that goal in mind: they brought in the best academic experts they could for that very purpose. As an historian, it seems to me that the plaintiffs also structured parts of their case to mimic something that had taken place at the Arkansas creationism trial from 1982. At that trial, theologian Langdon Gilkey and philosopher Michael Ruse painted creationism as religion, not science. The plaintiffs in the Dover case used theologian John Haught and philosopher Robert Pennock to do the same thing. Then, testimony from philosopher Barbara Forrest, showing that Of Pandas and People had quietly morphed from a genuine creationist book into the pro-ID book mentioned in the statement read to Dover students, coupled with the fact that some school board members really wanted to teach creationism, pretty much sealed the deal. In other words, the judge listened to the unrefuted testimony in front of him and connected it with existing court precedents in a clear and obvious manner. I don’t call that activism.

Did he have the authority to decide that ID isn’t science? Well, he’s certainly far less qualified to decide that than someone like me—and I am hardly as qualified as someone like Ruse or Pennock. On the other hand, the relevant expertise was on display in his courtroom, and he is highly qualified to reach verdicts in legal cases, which is exactly what he did. I see no evidence that he didn’t understand what he’d heard. Perhaps DI would have had less to complain about, if they’d kept all of their people in the case, but they didn’t. We can only speculate. (However, I doubt that DI would have had less to complain about, if Thompson had taken my advice, because they are no less committed than he is to the position that ID really is a scientific alternative to evolution.)

DV: The plaintiffs strongly argued, based on versions of Pandas, that ID is merely re-labelled creationism. What do you think?

TD: It’s true that Barbara Forrest’s testimony about that book—showing how the word “creationism” morphed into the term “intelligent design” immediately after the Supreme Court forbade public schools from teaching creationism—influenced Judge Jones’ ruling. Based on what that and certain other evidence presented in court, he had good reasons to conclude “that ID is nothing less than the progeny of creationism.” But, that’s not really correct, despite the evidence presented in court. As I explained at the time, ID lacks crucial elements of the kind of “creationism” that the courts had previously ruled against, and it hardly reduces to a type of sectarian religion, which is how the courts have seen creationism. As you know, the founders of ID tried as hard as they could to keep God and the Bible off the table, in order not to run afoul of previous precedents about “creationism.” Phillip Johnson, an early leader and formational voice of the ID movement, is awfully smart. As a young man, he got a job as law clerk for Chief Justice Earl Warren. So, he knew exactly what he was doing by steering clear of explicit religious language and ideas. Most of the ID folks I’ve talked to think “creationism” is junk science, although they hesitate to say so publicly, so as not to drive YEC people out of their big tent. Nor do they hesitate to use the Big Bang in design arguments, something that real “creationists” would never do. If more of them had actually testified, perhaps the judge would have written a different verdict—but, we’ll never know.

This visual summarizes how the word “creationism” was replaced systematically with the term “intelligent design” in various editions of the Pandas book, which changed its name three times, after being originally published with the title Creation Biology in 1983. The “X” where the two graphs cross in 1987 corresponds to the sudden major change that took place following the following the Supreme Court decision outlawing creationism that same year. (image source)

 Now, this doesn’t mean that ID people are entirely unsympathetic with “creationists.” At least a few IDers are actually creationists themselves—Paul Nelson and Dean Kenyon would be examples—and quite a few others are very sympathetic. Several years ago, Johnson even did a speaking tour in England with Andrew Snelling, a British geologist who’s a YEC. He and many other ID proponents project a similar tone to that adopted by “creationists” in culture wars—namely, that “Darwinism” lies at the root of unbelief and godless behavior in Western societies. The DI pushes that view all the time. Furthermore, since some top ID proponents, especially Meyer, helped transform Creation Biology into Pandas, they really have no one to blame but themselves for Judge Jones’ decision. If the judge got fooled, they helped to fool him.

DV: In the years since Dover, it seems to me that ID has been on the decline as a movement. What are your thoughts?

TD: I don’t have confidence in any specific answer, because I don’t have data to make a before/after comparison. I can’t think of any court cases involving ID since Kitzmiller, but I’m sure readers will correct me if I’m forgetting something. ID still has a major presence on the internet, at places like Discovery and Uncommon Descent, though the latter site is far too sympathetic to the YEC view to be doing ID any favors. The DI runs multiple major public conferences annually--and apparently fills them to capacity, which says something about the size of their audience. I still see articles promoting aspects of ID in Christian magazines, and lots of pro-ID books are still being published. Biola University has put ID at the heart of their master’s program in science and religion, and the most popular Christian apologists use ID arguments. I use a couple of design arguments myself, in certain contexts, but because they aren’t based on biological contrivances or supposed problems with evolutionary theory, not everyone would associate them with ID.

DV: Do you think the DI will eventually find their ideal “test case” to take this issue back to the courts? Kitzmiller, after all, was never appealed, and thus has sway only in one small area legally, though the decision has (obviously) a huge impact across the USA. 

TD: I wouldn’t be surprised if another test case does emerge at some point, given the intensity of opposition to teaching evolution in public schools. However, if ID supporters want to make a case for teaching ID as an alternative to evolution, they have to step up their game, clearly define what such an alternative would look like, and be prepared to persuade a federal judge that it’s genuinely scientific. I doubt their best bet is to stick with “teach the controversy,” since there just isn’t much real controversy among biologists about the basic truth of evolution.

DV: The Scopes trial took place ninety years ago, in 1925, when old-earth creationism was the prevalent belief among Bryan and his fundamentalist friends. In the 1980s there were two federal court trials involving young-earth creationism, including one argued before the Supreme Court. Then, we had the Kitzmiller trial about ID in 2005. Why does opposition to teaching evolution have such staying power in the United States?

TD: Perhaps the most helpful answer is, that a key background assumption for American public schools has changed quite dramatically since the antebellum period. When Horace Mann pushed his notion of “common schools” in the 1840s and 1850s, he had to respond to objections from certain Protestants (mostly Calvinists) who saw his schools as essentially Unitarian in orientation. His solution was to find religious principles and practices with broad support, such as reading the Bible without commentary or saying the Lord’s prayer--two things that were taken out of public schools in the 1960s. American schools were supposed to avoid controversial topics, keeping religious and political disagreements out of the curriculum. The spirit of this was clearly violated, when the enormously controversial subject of evolution entered the curriculum toward the end of the nineteenth century. It’s no accident that the Scopes trial took place not long after enrollment in public high schools exploded, in the period from 1890 to 1920; nor that it happened not long after science textbooks had removed even implicit references to divine agency in evolution, when the previous generation of books had given it a vaguely theistic flavor. The legacy of these fundamental changes is still with us.

In my opinion, there are two overarching reasons why many Americans continue to oppose teaching evolution, or at least favor teaching a religious or quasi-religious alternative along with evolution. First, they believe evolution is an anti-religious “theory” that has never been proved. BioLogos has zillions of resources addressing both parts of that objection, but it’s persistent. The second reason is that public education in the United States amounts to a monopoly, both economically and philosophically: families have just one option supported by their own tax dollars, and tens of millions of Americans believe that single option is guided by assumptions and perspectives that are very unfriendly to their own values and religious beliefs. Since the Second World War, courts have interpreted the First Amendment as calling for a “high wall of separation” between religion and all levels of government—even though that language is not in the Constitution, and the concept probably isn’t either. Thus, many parents feel disenfranchised: their children are being indoctrinated into a worldview and a set of values that they despise, and there are no alternative educational options for which they can spend their own tax dollars. The situation is unstable and (in my opinion) also unjust, but insoluble--unless the courts were to adopt a different interpretation of the First Amendment. Thus, I don’t expect a genuine solution in my lifetime.

A few months before the Kitzmiller trial,the Survey Research Institute at Cornell University conducted a national poll, asking respondents whether or not they supported teaching ID as an alternative to evolution in public schools. The results showed overwhelming support for teaching ID in every single demographic group, cutting across political lines. Only those who identified themselves as not religious favored teaching only evolution. (image source)



References & Credits

Recommended Reading:

The definite history is Edward J. Larson, Trial and Error: The American Controversy over Creation and Evolution, 3rd edition (2003). Larson’s Pulitzer-prize winning Summer for the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion (1997) is also highly recommended; likewise Ronald J. Numbers, The Creationists: From Scientific Creationism to Intelligent Design, expanded edition (2006).  I have benefitted much from conversations with my colleague Milton Gaither, an excellent historian of education.

Of Pandas and People image: (source)

About the Authors

Ted Davis

Ted Davis is Fellow of the History of Science for the BioLogos Foundation and Professor of the History of Science at Messiah College. A former high school science teacher, Ted studied history and philosophy of science at Indiana University, where his mentor was the late Richard S. Westfall, author of the definitive biography of Isaac Newton. With the English historian Michael Hunter, Ted edited The Works of Robert Boyle, 14 vols. (London: Pickering & Chatto, 1999-2000), but his interests include the whole 2000-year interaction of Christianity and science. Author of dozens of scholarly articles and essays, Ted is one of few historians who have written extensively about both the Scientific Revolution and modern America. He and his wife Kathy enjoy theater, music, and traveling to new places.

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Dennis Venema

Dennis Venema is professor of biology at Trinity Western University in Langley, British Columbia and Fellow of Biology for BioLogos. He holds a B.Sc. (with Honors) from the University of British Columbia (1996), and received his Ph.D. from the University of British Columbia in 2003. His research is focused on the genetics of pattern formation and signaling using the common fruit fly Drosophila melanogaster as a model organism. Dennis is a gifted thinker and writer on matters of science and faith, but also an award-winning biology teacher—he won the 2008 College Biology Teaching Award from the National Association of Biology Teachers. He and his family enjoy numerous outdoor activities that the Canadian Pacific coast region has to offer. 

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