Legal commentary mentioning the Kitzmiller decision is now starting to appear in legal journals. In the Spring, 2006 issue of the Harvard Journal of Law & Public Policy, one of the most widely circulated law journals, the lead article addresses intelligent design, Kitzmiller, and the establishment clause.
Cristi L. Bowman’s article, “Seeing Government Purpose Through the Objective Observer’s Eyes: The Evolution-Intelligent Design Debates,” is available here.
Most of the article is about establishment clause jurisprudence, and an argument against part of McCreary County v. ACLU. Bowman argues that the government purpose prong of the Lemon test should return to focusing on “actual intent,” rather than trying to evaluate government purpose with an “objective observer.” Kitzmiller and the evolution-intelligent design controversy serve as the article’s setting for how the objective observer standard will play out in future establishment clause cases.
The article’s argument against expanding the use of an objective observer points out the convoluted status of establishment clause jurisprudence. The Lemon test is virtually impossible to apply consistently, particularly when the courts attempt to evaluate government purpose. One can only hope that the Supreme Court may revisit this and other aspects of establishment clause law in the near future.
Part’s III and IV of the article focus on the establishment clause argument. Part II reviews the evolution-intelligent design controversy. While Bowman presents a fairly accurate picture of the dispute, the article fails to accurately represent intelligent design. Ultimately, the mis-portrayals of intelligent design do not undermine the article’s main point, but are worth noting and rebutting.
Bowman argues that the objective observer standard for determing purpose in the McCreary County case should not be used for government purpose analysis, but rather that courts should use an “actual government” purpose standard. Because the Kitzmiller ruling looked to actual government purpose, focusing on private statements from individual school board members and assessing their personal religious motivations, the decision went beyond the McCreary County standard to look at the specific, subjective intent of the Dover school board members. Bowman believes that the method used in Kitzmiller–delving deep to find actual purpose–is better than the objective observer standard set out in McCreary County.
While many supporters of intelligent design share Bowman’s skepticism of the objective observer as used in government purpose analysis, Bowman’s article is motivated by a desire to allow religious motivation of ID supporters to be “outed,” which she contends cannot happen if courts follow McCreary County. Bowman believes that Kitzmiller did not strictly follow McCreary County in this regard, making the article a defense, of sorts, for Kitzmiller’s new form of government purpose analysis.
Questionable Treatment of Intelligent Design
To be clear, Bowman presents intelligent design in a more accurate light than many of the critics. For example, she recognizes that “intelligent design advocates’ purpose is nearly always less overtly religious than that of traditional creationists.” (423). Bowman provides an overview of evolution, then creationism, and then intelligent design, thus resisting the common attempt to equate intelligent design with creationism.
Under the evolution overview, Bowman harps on the point that evolution is compatible with religion (citing Kenneth Miller, and the NCSE). Under the creationism overview, Bowman nicely distinguishes between young earth creationism, and old earth creationism. Both overviews cite to primary source literature from proponents of the viewpoint.
The intelligent design overview, by contrast, has lax citation to proponents of the viewpoint, and presents many critiques. For example, Bowman frequently cites to news reports to represent intelligent design arguments, as opposed to actually letting the intelligent design proponents represent their views. (See her footnote 53, p.432, which cites to three newspaper reports to establish the position of “intelligent design proponents.”)
Bowman presents two main intelligent design ideas, both with questionable accuracy. First she presents Behe’s irreducible complexity, claiming that it “in a significant sense rekindles the argument presented in 1802 by William Paley.” (432). Bowman presents a rough version of Behe’s arguments for irreducible complexity. Bowman fails to mention a single irreducibly complex system highlighted in Behe’s book, Darwin’s Black Box, not even Behe’s infamous flagellum or blood clotting cascade examples. She does, however represent Behe’s book as arguing that “the cell” (in general apparently) is irreducibly complex. Bowman cites page 10 of Darwin’s Black Box, which as best as I can determine, is the introductory chapter explaining reccent advances in microbiology, not actually an argument that “the cell” is irreducibly complex. Given this odd citation and inaccurate representations of Behe’s book, it seems doubtful that the author has read much of Darwin’s Black Box.
Regarding peer-reviewed literature, Bowman notes that ID is “almost entirely absent from peer-reviewed journals.” The footnote here notes only two articles, and refers to Steven Meyer’s article in the Proceedings of the Biological Society of Washington as “the only intelligent design argument published in a peer-reviewed scientific journal,” and the that the journal issued a statement saying the article did not receive proper peer review. This clearly under-represents the presence of intelligent design in peer-review literature, (see here for a good list) and is only one article better than Judge Jones flawed treatment of the issue in Kitzmiller. What is more, Bowman accepts the repudiation of Meyer’s article as if it were relevant, failing to nuance the highly political nature of the PBSW’s statement, which was pushed by the NCSE as damage control.
Bowman recognizes William Dembski’s arguments as a second main argument for intelligent design. However, the article representation of Dembski has even more problems than the section representing Behe. The section about Dembski’s “odds based” (Bowman’s words) argument fails to cite Dembski directly. (p.436). Bowman introduces Dembski as “Southern Baptist Theological Seminary professor and mathematician William Dembski,” a technically correct statement that seems designed to undermine Dembski’s qualification as a scientific expert, who holds Ph.D’s in both mathematics and philosophy from leading secular universities. The article, perhaps not surprisingly, presented Dembski’s arguments in a very weak, simplified form.
Furthermore, throughout the overview of intelligent design, Bowman makes a surprising number of unsupported claims that can only leave the law review reader accustomed to careful citation puzzled. For example, “Aside from Behe, Dembski and a few others, [cites Discovery.org] most of intelligent design’s visible proponents are not scientists or even academics.” (p.436). Bowman provides no citation at all for which “visible proponents” are not scientists. Earlier, Bowman claims that intelligent design proponents see “evolution’s silence about divinity is viewed as hostility towards religion.” (434). This claim is completely unsupported, and ends with a curious citation where Bowman reveals that she considers herself to be an evolutionary theist. Finally, Bowman claims that “many of intelligent design’s strongest proponents are fundamentalist Christians.” (438). She provides no definition for “fundamentalist” and gives no citation whatsoever for this claim, leaving it as a bare assertion. These are all claims made against intelligent design that must, at minimum, be supported under standard law review protocol.
The article does not accurately present intelligent design. It does a fair job generally representing intelligent design, and certainly is more accurate than many of the arguments made by critics of intelligent design. This misrepresentation of intelligent design, however, has very little effect on her main argument. The unfair treatment of intelligent design is unfortunate, but the article, in the end, has more to do with establishment clause case law and less to do with critiquing intelligent design.
Bowman’s call to eliminate the objective observer standard from McCreary County from the first prong of Lemon does not depend on the specifics of the intelligent design controversy. Ultimately, Bowman makes it clear that she views the religious views of intelligent design supporters to be highly relevant for establishment clause purposes. Yet she fails to consider what might happen to the teaching of evolution if the anti-religious motives of many of its leading supporters were equally scrutinized in the courtroom. (Anti-religious motivations of many leading proponents of Darwinism are discussed here, and the inappropriate legal double-standard is discussed extensively in Traipsing Into Evolution.)
Even though Bowman believes that Kitzmiller was right to focus on religious motivations of the school board members, the article also demonstrates how unstable and messy the establishment clause jurisprudence has become. This legal argument, defending the extensive probing of religious motivation, would arguably make the law more hostile to intelligent design. However, the article can also be read as a valid commentary on the convoluted and confused state of establishment clause case law.