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Law Review Article Agrees That Judge Jones Went Too Far

Casey Luskin

A student note in Rutgers Journal of Law & Religion agrees that Judge Jones overextended the judicial arm when he decided on the question of whether ID is science. Observing that Judge Jones correctly found that the Dover School Board members had religious motives, Philip A. Italiano then explains that the ruling should have stopped its analysis there and not extended into broad questions about the definition of science. Italiano recognizes that the Kitzmiller facts did not present the appropriate case in which to decide whether ID is science:

Perhaps there theoretically could exist a factual scenario in which the motives of those who write intelligent design into a public school science curriculum are nonreligious, and in which the only way for a court to ascertain whether the policy has the effect of an actual or perceived endorsement of religion is to determine whether intelligent design is or is not science. Kitzmiller was not such a case, however, and until that case arises, courts should strike down such policies on narrower grounds. The Kitzmiller court could have struck down Dover’s policy under either the Lemon test’s purpose prong or under the endorsement test without judging the scientific validity of intelligent design.

(Phillip A. Italiano, Kitzmiller v. Dover Area School District: The First Judicial Test for Intelligent Design, 8 Rutgers Journal of Law & Religion 4, 46 (Fall, 2006) (internal footnotes omitted).)

Mr. Italiano is right: Longstanding precedent suggests that courts should not decide broad questions which need not be addressed in order to resolve the case. As the U. S. Supreme Court stated in 1924:

In the realm of constitutional law, especially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted.

(Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 397 (1926).)

Italiano also recognizes the danger of courts attempting to supersede the scientific process:

This opinion, though dispatching of a policy in violation of the Establishment Clause, raises deeper questions that may need to be answered in years to come. Should courts establish legal definitions for what qualifies as science and as religion? How far should courts venture into the world of science and particularly into the origins of man, where the lines of science, philosophy, and religion merge? It should not be the role of the courts to provide theories such as intelligent design an avenue through which to enter the mainstream, whether in public schools or elsewhere; rather, it should be the role of scientists themselves. Likewise, it should not be the role of the courts to suggest that the work and observations of Dr. Behe, for example, are inherently religious. Ultimately the scientific process itself should be the means by which a theory such as intelligent design wins or loses credibility.

(Italiano, 8 Rutgers Journal of Law & Religion at 45 (internal footnotes omitted).)

Italiano thus echoes some of the same concerns stated by anti-ID legal scholar Jay Wexler, that the Kitzmiller ruling may be “dangerous” to the scientific process.

Italiano concludes that intelligent design will progress as a science regardless of what Judge Jones said, stating “even though the Middle District of Pennsylvania struck a blow to the intelligent design theory, its proponents will continue to make the case for its scientific validity.” (Italiano, pg. 44) Again, Italiano is absolutely right: a court cannot change the scientific data, and scientific research into intelligent design continues to progress, regardless of Judge Jones’ claim that none of this is science.


Casey Luskin

Associate Director, 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.



Judge John E. JonesKitzmiller v. Dover Area School DistrictNews