“Judge Jones said it, I believe it, that settles it” – The Missing Legal Basis in Kitzmiller

Michael Francisco

Notorious legal decisions often develop a common-man meaning. The public perception of the Kitzmiller decision is that Judge Jones supposedly settled the issue: intelligent design is not science. As a law student, I have been amazed that this most important of Kitzmiller holdings is unsupported by any legal reasoning.
The news coverage of Kitzmiller has encouraged this misperception. CNN.com simplified the entire decision as being about defining science: “U.S. District Judge John Jones concluded in a 139-page decision that intelligent design is not science.” This is absurd to anyone who respects the law. Judges should only be deciding matters of law, not declaring as authoritative his opinion on matters of politics, or philosophy, or science.

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It’s hard to blame people for thinking that Judge Jones decided the bounds of science, since the opinion itself claims to have settled these non-legal issues. While much of the Kitzmiller opinion focuses in on the First Amendment challenge that the Dover School Board violated the establishment clause, Judge Jones used substantial space to offer an opinion about the definition of science, and even the scientific veracity on such questions as flagellum development and the complexity of blood clotting.
In this detailed analysis, I will take a close look at Judge Jones reasoning, and evaluate the potential legal basis for determining the scientific status of ID. Ultimately, I find that the Kitzmiller opinion has no legal basis to determine the scientific status of intelligent design, and as such, is merely the opinion of one man, not the law as proclaimed by a federal district court judge.
The Legal Framework
The legal question before Judge Jones in the Kizmiller case was whether the Dover School Board had violated the Constitution. The beginning of the case states this clearly: “It is contended that the ID Policy constitutes an establishment of religion prohibited by the First Amendment to the United States Constitution. . .”(2) (All citations will be to the PDF version of the opinion.). To determine if the Dover School Board has violated the First Amendment, Judge Jones applied the well-known “Lemon test,” as well as the newer variant, the “endorsement test.”
Structurally, the bulk of the Kitzmiller decision addresses the endorsement test in “Section E” (14–90), and the Lemon test in “Section F” (90–134). It is not immediately obvious why the constitutional analysis would even consider the nature of science, since what is prohibited is establishing a religion. The Constitution does not mandate that only NCSE approved science be taught in public schools.
The Scientific Status of ID has Nothing to do with Endorsement of Religion
The bulk of Judge Jones’ analysis on why he thinks ID is not science appears in the endorsement test section of the opinion. However, there is virtually no legal reasoning given by Judge Jones to justify his vast dicta.
The endorsement test section of Kitzmiller had four sub-sections: 1) would an objective observer know that ID evolved from creationism, 2) would an objective student view the disclaimer as endorsing religion, 3) would an objective Dover citizen view the policy as endorsing religion, and 4) “Whether ID is Science.” One of these four sections is not like the others.
The Kitzmiller decision formulates the endorsement test as deciding what message the challenged government policy (Dover ID Policy) conveys to a reasonable, objective observer. (See pages 14–18). Thus, it makes perfect sense why Judge Jones examined the objective observer, objective student and objective Dover citizen, the first three sub-sections. What doesn’t make sense is why Judge Jones added his fourth sub-section, “Whether ID is Science.”
Judge Jones makes an awkward transition to get to his analysis of science:

“We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants’ conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science.” (62).

There is no attempt by Judge Jones to connect the science question with the religious endorsement legal analysis. Why is it “incumbent” on this court to “further address an additional issue raised by Plaintiffs”? It is not the role of the court to answer all issues raised by a party in litigation, and it is most certainly not answering a constitutional question. I cannot recall ever reading a case where the Judge candidly pronounces that it’s time to answer “an additional issue raised by the plaintiff’s,” at least not without some connection to the legal decision.
Judge Jones goes on to claim that the “conclusion on whether ID is science . . . is essential to our holding that an Establishment Clause violation has occurred in this case.” (62/3). However, why the science status of ID, or anything else for that matter, is necessary to answer the question of whether an observer would perceive actions as endorsing, or supporting religion is entirely unclear. The only thing we do know about the science question is that Judge Jones believes he is the best person to answer this question: “[T]he Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area.” (62). Perhaps “traipse” is a signal that the judge intends to answer questions outside the law.
Lack of Legal Support
My purpose is not to evaluate the merits of Judge Jones arguments that (1) ID violates the ground rules of science, (2) irreducible complexity relies on “contrived dualism” or that (3) ID’s attacks on evolution have allegedly been refuted by the scientific community. Instead, I want to focus in on why Judge Jones tried to answer these questions, and furthermore, if there is any legal basis for his analysis. If Judge Jones was not determining law, as I will show, then his extended foray into what he considers science is nothing but one man’s opinion that other courts, and other school boards are entirely justified to agree with, or completely ignore.
In all of sub-section 4, Judge Jones only refers to case law three times. For a section that runs 25 pages (64–89), that is strikingly sparse. Just compare Judge Jones use of case law elsewhere in the endorsement test section where Judge Jones frequently cited cases and made repeated arguments about how the Dover situation worked with the legal norms of the establishment clause. However, the “Whether ID is Science” sub-section had virtually no legal analysis. This almost non-existent use of case law exposes the lacking legal basis for the extended “traipse.”
(1) Edwards v. Aguillard
Judge Jones references Edwards v. Aguillard, and McLean v. Arkansas Board of Education (66/7) to support his claim that ID’s attempt to “to change the ground rules of science to allow supernatural causation of the natural world” is an “inherently religious concept.” (66). Even setting aside the difference in challenging methodological naturalism and supernatural causation, (and how ID does not advocate supernatural causation) the problem for Judge Jones is that the Supreme Court in Edwards did not discuss an “inherently religious” concept. Indeed the word “inherent” appears nowhere in the Edwards decision as cited by Judge Jones.
The Edwards Court stated that “[t]here is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution.” (Edwards at 591). The Court was concerned only with the Louisiana balanced treatment law, not any general question of supernatural causation. “The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind.” (Edwards at 592) The case went on to examine “the legislature that adopted this Act” and the “legislative history.” This was clearly fact-specific to Louisiana and completely inapplicable to intelligent design two decades later in a different state.
Not only did Judge Jones wrongly rely on Edwards, but only a few pages later in the Edwards opinion the Court offers analysis that comes close to contradicting what Judge Jones claims in Kizmiller. The Edwards Court noted that, “As in Epperson, the legislature passed the Act to give preference to those religious groups which have as one of their tenets the creation of humankind by a divine creator.” The Court continued, “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.” (Edwards at 594) Much of the ID Policy that Kitzmiller ruled on can fairly be considered scientific critiques of the prevailing theory. Far from holding supernatural causation to be “inherently religious,” the Edwards decision seems to approve of teaching material critical of evolution.
(2) McLean v. Arkansas
In this same paragraph citing Edwards Judge Jones cited the famous District Court case McLean v. Arkansas. This case involved a 1982 Arkansas statute that required equal time for “creation science” and evolution — a strategy that McLean famously characterized as “contrived dualism.” (McLean at 1266). Judge Jones explicitly invoked the “contrived dualism” portion of McLean later in his science-defining traipse. (70). There are too many differences between the McLean case and the Kitzmiller case to analyze here. The McLean decision pronounced that creation science, as defined in the Arkansas law, “is simply not science.”(McLean at 1267). The decision also found no educational value in teaching creation science. What is most interesting for comparison is the Mclean statement that:

“The conclusion that creation science has no scientific merit or educational value as science has legal significance in light of the Court’s previous conclusion that creation science has, as one major effect, the advancement of religion. The second part of the three-pronged test for establishment reaches only those statutes having as their primary effect the advancement of religion. Secondary effects which advance religion are not constitutionally fatal. Since creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion. The Act therefore fails both the first and second portions of the test in Lemon v. Kurtzman. (McLean at 1272).

This McLean analysis explains why that court found it necessary to weigh in on the pedagogical and scientific value of the mandated Creation Science teaching. The most generous reading of Judge Jones in Kitzmiller would claim that even though Judge Jones never explicitly makes the connection between a lack of scientific status and religious establishment, maybe the Judge was using the same logic that the McLean court used.
The McLean court reasons that teaching creation science can have only two effects, either advancing religion or adding educational value to science. Since McLean found the Arkansas creation science to lack any scientific benefit, it reasoned that its only remaining or effect was to advance religion. However, looking at Judge Jones’ reasoning in Kitzmiller, there is none of the without-science-only-religion analysis. Even the closest reading of Judge Jones pivotal conclusion to the science sub-section, page 89, shows no claim that a lack of scientific status creates a constitutional problem. Kitzmiller reads as a free-standing essay on the nature of science.
For example the Kitzmiller decision proclaims, “[W]e find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community.”(89). This would be a fine opinion for a philosopher of science to make in a political debate, or for someone to argue at a school board hearing, but why does Judge Jones need to “hold” anything about this “contentious” question? There is no legal requirement that schools must teach only true science. The law does prohibit wrongly establishing a religion, but that means nothing about defining the bounds of science.
Perhaps Judge Jones relies on a false dichotomy of his own (a contrived dualism?) that ID is either science, or religion. Indeed, immediately after Judge Jones expounds his philosophy of science, he adds, “ID, as noted, is grounded in theology, not science.” This is a bald assertion with no further support from Judge Jones. Surely ID is not theological just because it falls outside science? Kitzmiller never references a definition of theology that is watered down enough to encompass the ID position. Nowhere does ID rely on religious documents as the Scientific Creationism of the McLean case did. Be that as it may, the Kitzmiller decision goes on to attack the critical thinking benefits of teaching ID: “[I]t still has utterly no place in a science curriculum.”(89). This may be Judge Jones’ personal opinion about how science curriculum should be, but it is not a conclusion of law.
Another problem for Judge Jones’ hypothetical reliance on the McLean false-dichotomy is that it bears no connection to the endorsement test of the establishment clause. Lest anyone forget, all the Kitzmiller analysis of ID not being science is supposed to fit within an endorsement test constitutional analysis. McLean came several years before the Supreme Court started employing the endorsement test — so Judge Jones should have explained how that case remains relevant.
Even granting this, there is a logical disconnect between the legal analysis of an endorsement test and the technical science analysis of Kitzmiller. According to Judge Jones’ own view of the endorsement test, the essence of endorsement analysis looks to the objective public parties perception of state action as establishing or favoring a specific religion. Thus, endorsement analysis asks what the student, or some other objective party, perceives because of the Dover policy. The first three sub-sections of the Kitzmiller endorsement section, which look the objective party, the objective student, and the objective resident of Dover, all make sense legally.
However, throughout the entirety of sub-section four, “Whether ID is Science,” Judge Jones drops the analysis of objective parties’ perceptions. Instead, he delves into his own personal views on technical science topics such as the complexity of the bacterial flagellum (76), who is right, Miller or Behe (71–75), the merits of peer-review in determining what counts as science (88), blood clotting (77), and the views of the scientific community (69). Those are all interesting discussions, but none of them are connected to objective person’s perceptions of religion because of state action. The entire sub-section, in this regard, ceases to be legal analysis and is really just the personal opinion of the judge — an opinion that does not count for the endorsement test.
3. Selman v. Cobb County
The final case cited by Judge Jones is the 2005 District Court case out of Georgia about placing stickers in science textbooks regarding Evolution. Kitzmiller quotes the Selman decision where it states that “evolution is more than a theory of origin in the context of science. To the contrary, evolution is the dominant scientific theory of origin. . .” (Selman at 1309). This quotation has nothing to do with the scientific status of ID, and was merely used to support Judge Jones high view that most scientists support Evolution. This means nothing for whether ID is science, or more importantly, whether there is a legal bar to mentioning ID in schools. (Interestingly, the Selman decision has been appealed, and a Circuit Court decision which could overrule Selman is due in the near future.)
Conclusion — Jones as Philosopher, not Judge
Perhaps the most clear sign that Judge Jones traipse into defining the bounds of science has almost nothing to do with law comes from his overly-generous assessment of the Kitzmiller decision:

“[W]e commend to the attention of those who are inclined to superficially consider ID to be a true “scientific” alternative to evolution without a true understanding of the concept the foregoing detailed analysis. It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science.” (89).

Notice the overall tone of Judge Jones’ advice column: ‘if you think ID is scientific, listen to me, I have figured out all the arguments.’ Thus Judge Jones preludes his discussion with an astounding passage where he attempts to dissuade all other courts from entering, and perhaps disagreeing, with his views:
“[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also 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 which is before us.” (63-64)
I can see it now on bumper stickers: “Judge Jones Said it. I Believe it. That settles it.” But this is not law, it is one man’s opinion, and it is one man who thinks no other court should bother tackling these issues because he thinks he has settled them. The establishment clause is not about the scientific veracity of ID’s claims. Even if it were, one does not have to agree or disagree with all Judge Jones analysis to know that his conclusions are far from “inescapable.” Just because there is a voluminous record does not mean that there must be some binding, final solution to all the disputed scientific questions. Yet the Kitzmiller opinion pronounces itself superior.
Judge Jones believes he reached “the inescapable conclusion that ID is an interesting theological argument, but that it is not science.”
To that I say that Kitzmiller is an interesting personal argument, but it is not law.
The “Judge Jones Said it, I Believe it, That Settles It” Bumper Sticker