Monkey See, Monkey Do

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com and in this commentary, takes a look at Tuesday's ruling saying the theory of Intelligent Design has no place in the science curriculum of a public school.

It is never a good sign when the judge in your case rules that your testimony was "marked by selective memories and outright lies under oath," calls your arguments a "sham," or says that he is writing a particularly comprehensive ruling "in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question" he faced as a result of your position in your case.

These are things a federal trial judge writes while he is ruling against you in virtually every conceivable way - while mocking your evidence. These are things that even a Bush appointee to the bench writes in a case about religion when he believes you have tried to pull a fast one on the Constitution.

And these are just a few of the pointed things that U.S. District Judge John E. Jones III included in his pointed, thorough 139-page order that stopped cold an attempt by supporters of the notion of Intelligent Design to try to wedge it into the bloodstream of a small public school system.

Intelligent Design, Judge Jones emphatically declared, is nothing more than creationism in disguise - "creationism re-labeled" is how he put it - and is therefore no more appropriate for public school classrooms under the first amendment's Establishment Clause than Bible recital itself.

He also completely rejected the arguments made by the Dover (Pa.) Area School District that Intelligent Design - which posits that some "master intellect" (wink, wink) is responsible for nature's delicate structure - is a scientific theory worthy of competition with the theory of evolution." Arguments against evolution are not arguments for design," Jones ruled, as he shot down the school board's positions one by one by one.

The closely-watched case turned out to be a legal rout for the plaintiffs, a group of parents and other residents of Dover who went to court when their elected school board officials announced in 2004 that starting in 2005, teachers would be required to tell their ninth-grade science students that (in so many words):

  1. Darwin's theory of evolution had "gaps… for which there is no evidence;"
  2. that Intelligent Design "is an explanation of the origin of life that differs from Darwin" and that there was a book - Of Pandas and People" - available "for students who might be interested" in it; and
  3. "students are required to keep an open mind" but that "the school leaves the discussion of the Origins of Life to individual students and their families."
This disclaimer, Judge Jones ruled after a six-week long non-jury trial, impermissibly and unconstitutionally "singles out the theory of evolution for special treatment, misrepresents its status in the scientific community, causes students to doubt its validity without scientific justification, presents students with a religious alternative masquerading as a scientific theory, directs them to consult a creationist text as though it were a science resources, and instructs students to forego scientific inquiry in the public school classroom and instead to seek out religious instruction elsewhere."

Other than that, though, Judge Jones had no problem with the move the school board tried to bust down the wall that separates church and state.

There is literally nothing in the long opinion that ought to give aid and comfort to supporters of Intelligent Design, who of course are free to continue to believe it in outside of the context of the public school system in Dover.

"Intelligent design" has a "religious nature and aspiration()," Judge Jones found, and "not one defense expert was able to explain how the supernatural action suggested by (Intelligent Design) could be anything other than an inherently religious proposition…. The evidence at trial demonstrates that (Intelligent Design) is nothing less than the progeny of creationism."

How bad was it for the school board? Even its own expert, the judge noted, "stated that the disclaimer about evolution was "misleading."

Moreover, the judge found, "every major scientific association that has taken a position on the issue of whether 'Intelligent Design' is science has concluded that ID is not, and cannot be considered as such… Not a single expert witness over the course of the six week trial identified one major scientific association, society or organization that endorsed ID as science."

The panda book, meanwhile, to which students were supposed to be referred as part of the disclaimer, was determined by Judge Jones to contain "outdated concepts and badly flawed science, as recognized by even defense experts in the case."

And, just in case supporters of Intelligent Design were hoping that Judge Jones would find something in their case evidence to humble the theory of evolution, he found that their positive evidence in favor of Intelligent Design "demonstrates that the ID argument is dependent upon a scientifically unreasonable burden of proof for the theory of evolution."

In other words, a tactic designed to undercut the theory of evolution may actually have bolstered it. The judge was careful to note that he expressed "no opinion on the ultimate veracity of ID as a supernatural explanation." But his thorough analysis of Intelligent Design as a so-called science, and especially in comparison to the theory of evolution, leaves little doubt that he considers it bunk.

If Intelligent Design itself was unable to withstand the intense glare of a federal trial, then its supporters on the school board fared even worse.

In November, they were tossed out of office, eight out of nine of them (with the ninth in a recount), by an angry populace embarrassed at being ridiculed throughout the rational world. And in Judge Jones' ruling, their testimony was mercilessly dissected. One former board member, the Judge noted, couldn't even get the words of "Intelligent Design" correct; she referred to it repeatedly during her testimony as "Intelligence Design."

The story of what happened to and by the school board of Dover, Pa. is truly worthy of an Arthur Miller play. According to the evidence as evaluated by Judge Jones, a bunch of manipulative board members in Dover decided that they wanted to inject into the science curriculum of their public schools a religious element that they knew or reasonably should have known to be impermissible under the First Amendment.

Yet they tried anyway, going to somewhat comical lengths to try to get around what they knew or should have known was well-established and well-reasoned law. In so doing, they subjected themselves to scorn and the notion of Intelligent Design to the kind of scrutiny it clearly could not withstand.

It may be decent fodder for a college philosophy or religion class but, if Judge Jones is correct, Intelligent Design has no place swimming with the big boys of science.

The moral of this case is that a rose by any other name is still a rose or, as Judge Jones wrote over and over again in his order, religion by any other name is still religion that is prohibited in public schools by the Constitution.

In the end, as the judge declared, the folks who pushed Intelligent Design didn't come off looking very intelligent at all. And the folks who opposed it ended up advancing the theory of evolution more than they could have dared dream they would.

Darwin would be proud of this ruling. And come to think of it, so would Clarence Darrow.
By Andrew Cohen