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Anti-ID Legal Scholar: “By Defining Science, the Judge Acted Beyond the Judicial Role”

When the Kitzmiller ruling was issued, Darwinists were quick to give it nothing but unyielding praise, while many ID-proponents immediately observed that Judge Jones made findings outside the scope of the judicial system. For example, I critiqued the ruling because “[i]t overreaches the judicial arm by ruling that the nature of science is characterized by methodological naturalism and that intelligent design is not science.” Darwinist Tim Sandefur replied, using irrelevant examples to claim that “surely a judge can decide that science is characterized by methodological naturalism.” A little over a year later, one of the most prominent anti-ID legal scholars has agreed in print with my position on this question. Wexler, an associate professor at Boston University School of Law, rejects ID and believes it is unconstitutional. But he warns in the latest issue of First Amendment Law Review that “ID opponents should not be overly hasty to praise Judge Jones’ discussion.” Wexler writes:

The opinion’s main flaw lies in the conclusion with which most ID opponents were particularly pleased–namely, the judge’s finding that ID is not science. I take this position, I hasten to add, not because I necessarily think that ID is science. As someone who is neither a scientist nor a philosopher of science, I do not know if ID is science. But the important issue for evaluating the decision is not whether ID actually is science–a question that sounds in philosophy of science–but rather whether judges should be deciding in their written opinions that ID is or is not science as a matter of law. On this question, I think the answer is “no,” particularly when the overall question posed to a court is whether teaching ID endorses religion, not whether ID is or is not science. The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous both to science and to freedom of religion.

(Jay D. Wexler, “Kitzmiller and the ‘Is It Science?’ Question,” 5 First Amendment Law Review 90, 92-93 (2006).)

Towards the end of his article, Wexler explains why he doesn’t want judges defining science: in a different case, he fears that defining science might legitimize teaching ID!

if one judge can practice philosophy of science, what is to stop others from doing the same? Perhaps the next judge to hear an ID case will decide that science simply means “the process of searching for the best logical explanations for observed data.” In that case, schools might be allowed to teach … ID… Is this really a can of worms that ID opponents want to open?

(Wexler, 5 First Amendment Law Review, at 107.)

The implication here is that perhaps there are legitimate ways of defining science which would permit ID to be taught. It seems that Wexler’s real concern here is the outcome–not the inherent fairness of the process.

As will be discussed in a coming post, a Darwinist attorney for the Kitzmiller plaintiffs also published in this law review journal, and attacked Wexler with harsh ridicule for critiquing Judge Jones. It’s unfortunate that Wexler had to undergo such ridicule for stating his views, but perhaps now he has a small taste what many ID-advocates commonly experience.

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.



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