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New England Journal of Medicine Traipses Into the Kitzmiller Decision (Part III)

[Editor’s Note: The three individual installments of this series can be seen here: Part 1, Part 2, Part 3. The final complete article, New England Journal of Medicine Traipses Into the Kitzmiller Decision, can be found here.]

Previously in parts one and two of this critique, I discussed how George Annas’s New England Journal of Medicine review of the Kitzmiller decision only told one part of the story.

The prior sections discussed problems with the Kitzmiller ruling’s finding that ID is not science. This final section will discuss problems with the claims that ID is creationism, and also the false history of ID promulgated in the ruling, and subsequently into “Intelligent Judging — Evolution in the Classroom and the Courtroom,” by George C. Annas, New England Journal of Medicine Volume 354 (21):2277-2281 (May 25, 2006).

Creationism and Early Drafts of Pandas
Mr. Annas also rehashes arguments made about certain pre-publication drafts of the textbook Of Pandas and People, which he faults for using the term “creationism.” Given that this term was never used in the published version of the book, the legal relevance of the point raised by Mr. Annas is murky at best. After all, the book used in the Dover school district was the published version of Pandas, not a pre-publication draft. What is the supposed relevance of a draft manuscript that students never saw let alone read? Even if the pre-publication drafts of Pandas are somehow relevant, they don’t show what Mr. Annas thinks.

a. Early Drafts of Pandas Actually Rejected “Creationism” as Defined by the Courts
When certain pre-publication drafts of Pandas used terms such as “creation” and “creationist,” they used them in a way that rejected “creationism” as defined by the courts and popular culture. In Edwards v. Aguillard, the U.S. Supreme Court declared creationism to be a religious viewpoint because it required a “supernatural creator”:

The legislative history therefore reveals that the term “creation science,” as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind. (Edwards v. Aguillard, 482 U.S. 578, 591-592, emphasis added)

Thus, what the Supreme Court found was religion and therefore unconstitutional was not the word “creationism,” but the teaching that a “supernatural creator” was responsible for life. “Creation science” was how the Louisiana Legislature had used to describe that religious concept.

Yet pre-publication drafts of Pandas juxtaposed the word “creation” with statements to the exact opposite effect, noting that science cannot scientifically detect a supernatural creator. Consider these important excerpts from pre-publication drafts of Pandas making it clear that from the beginning, their project did not advocate what the courts have defined as “creationism” :

In each of these excerpts from pre-Edwards v. Aguillard drafts of Pandas, it is clear that the idea of “creation” discussed in pre-publication drafts of Pandas was specifically NOT trying to postulate a supernatural creator! The concepts advanced by even pre-publication, pre-Edwards drafts of Pandas were sharply different from what the courts have defined as “creationism.” These early drafts were not trying to study the supernatural.

To solidify this point, consider the deposition testimony of Charles Thaxton as to why he started to use the term intelligent design in the Pandas book:

I wasn’t comfortable with the typical vocabulary that for the most part creationists were using because it didn’t express what I was trying to do. They were wanting to bring God into the discussion, and I was wanting to stay within the empirical domain and do what you can do legitimately there.

(Deposition of Charles Thaxton 52-53, Kitzmiller, No. 4:04-CV-2688 (M.D. Pa., July 19, 2005))

Similarly, a 1990 post-publication rebuttal to a critic, written by the Pandas publisher explains:

As a consequence, yes, we are careful not to identify the intelligent cause behind the biological phenomena presented, but not for purposes of stealth, but rather precisely because we think that this is a religious conclusion.

Thus, the limits of what intelligent design can tell us stem not from legal strategies but from an honest effort to limit statements to scientific claims that can be made based upon the empirical data. ID is about respecting the limits of the scientific data–not hiding religion for legal purposes. In other words, even in its pre-publication form Pandas offered a theory that was conceptually distinct from what the courts have defined as “creationism.”

b. “Abrupt” Appearance Language Does Not Make ID “Creationism”
According to Mr. Annas, Judge Jones also ruled that ” (1) the definition for creation science in the early drafts is identical to the definition of ID.” But was Judge Jones right to assert that this makes ID unconstitutional?

To my knowledge, there is only one instance where a definition given for “creationism” in pre-publication drafts was the same as the definition given for ID in the published version. This final definition reads that intelligent design means “various forms of life that began abruptly through an intelligent agency with their distinctive features intact–fish with fins and scales, birds with feathers, beaks, and wings, etc.” Yet this language of “abrupt” appearance of fully-formed biological structures is simply a common observation about the fossil record, not a religious claim. Such claims about abrupt appearance are echoed by many prominent evolutionists, including Stephen Jay Gould and Ernst Mayr:

“The fossil record with its abrupt transitions offers no support for gradual change . . . transitions between major groups are characteristically abrupt.” (Stephen Jay Gould, The Return of Hopeful Monsters, 86 Natural History, pg. 22-24 (June-July, 1977) (emphasis added).)

“Anything truly novel always seemed to appear quite abruptly in the fossil record.” (Ernst Mayr, One Long Argument: Charles Darwin and the Genesis of Modern Evolutionary Thought, pg. 138 (1991) (emphasis added).)

Indeed, the observation that types of organisms appear with their body plans “intact” or “fully formed” is also expounded in an pro-evolution college text, published the same year as the Pandas textbooks used in Dover:

Most of the animal phyla that are represented in the fossil record first appear, ‘fully formed‘ and identifiable as to their phylum in the Cambrian some 550 million years ago. These include such advanced anatomically complex types as trilobites, echinoderms, brachiopods, and mollusks. . . . The fossil record is therefore of no help with respect to the origin and early diversification of the various animal phyla . . . (R.S.K. Barnes, et al., The Invertebrates: A New Synthesis, pg. 10-11 (2nd ed. Blackwell Scientific, 1993) (emphasis added).

That the Pandas textbook would dare attribute these common observations of the fossil record to “an intelligent agency” should not render intelligent design the equivalent of “creationism” any more than Gould’s observations should render him or his theory of punctuated equilibrium “creationist.”

It is also worth reiterating that in Edwards v. Aguillard, the U.S. Supreme Court found creationism was religion because it required the “supernatural,” and notions of “abrupt appearance” had no impact upon the majority’s constitutional analysis. Perhaps this was because of the number of mainstream evolutionist paleontologists who recognize the historical fact of the abrupt appearance of “fully-formed” complex biological features in the history of life.

ID was formulated in its present form–an empirically based argument that would not stray into the supernatural–before the Edwards case was decided. Thus, even before Edwards v. Aguillard, ID lacked the very quality that caused creationism to be declared unconstitutional: it did not postulate a “supernatural creator.” The similar definition between creationism and ID in pre-publication and published drafts of is based upon common scientific observations of “abrupt appearance” that are completely irrelevant to constitutional analysis under the Edwards v. Aguillard majority ruling. Judge Jones got it wrong. It is most unfortunate that these facts were left out of this article explaining the Kitzmiller decision to medical doctors.

Revisionist History about Discovery’s Involvement in Dover
Finally, Mr. Annas claims that it was Discovery Institute who pushed Dover to pass its policy:

The Discovery Institute established its Center for Science and Culture to challenge Darwin’s theory and promote the inclusion of intelligent design in school curricula nationwide.


To determine the purpose of the requirement of teaching intelligent design, the judge examined the statements and actions of the members of the school board, which showed that the members who sponsored the new rule had religious motivations and worked with the Discovery Institute to promote the institute’s agenda of intelligent design, including arranging for science teachers to watch a Discovery Institute film entitled Icons of Evolution.

(Intelligent Judging — Evolution in the Classroom and the Courtroom)

If Mr. Annas is going to make this claim, it would be accurate to point out, as we did to Judge Jones, that Discovery opposed Dover’s attempt to mandate ID. Indeed, Seth Cooper, a Discovery Institute attorney at the time, met with Dover school board members specifically to urge them not to mandate ID (see Statement by Seth L. Cooper Concerning Discovery Institute and the Decision in Kitzmiller v. Dover Area School Board Intelligent Design Case for details). Rather, Discovery encouraged Dover to follow the same policy has long suggested everywhere else: mandate teaching about scientific strengths and weaknesses of evolution, but don’t mandate the teaching of alternative theories like intelligent design.

So if Discovery was trying to dissuade Dover from mandating ID, then why would it have encouraged people in Dover to watch the Icons video? The answer is simple for those who have watched the video: Icons of Evolution is not about intelligent design. The Icons video, like the book, is about pure critique of evolution without talking about replacement theories like intelligent design. The video covers topics like Haeckel’s embryos and Darwin’s Tree of Life, and how they don’t support Neo-Darwinism. The documentary fits perfectly with a critical analysis of evolution policy, and says nothing about intelligent design.

Mr. Annas claims that “critical analysis” policies are based upon a “controversy … largely manufactured by the proponents of creationism and intelligent design.” If there’s no controversy, then why have over 500 scientists signed a public statement of dissent from Neo-Darwinism? Why does the peer-reviewed literature contain much reason for the critique of Neo-Darwinism–including some criticisms that cut to the core of the theory, such as the ability of mutation and selection to produce the complexity of life! Since Mr. Annas’s article was published in a leading medical journal, it seems relevent to ask, “if there’s no controversy then why do 34% – 60% of doctors agree that there was a guiding intelligence behind life?” (Medical doctors are also beginning to sign a new list of doctors dissenting from Darwinism?)

That sounds just like a scientific controversy to me, and it is most unfortunate that readers of the prestigious New England Journal of Medicine are not being given the full set of facts regarding the accuracy of the Kitzmiller ruling.

Casey Luskin

Associate Director and Senior Fellow, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



__editedKitzmiller v. Dover Area School DistrictNew England Journal of Medicine