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Q & A with a friendly Darwinist about Discovery Institute’s Amicus Briefs in the Kitzmiller case

Casey Luskin

Some Darwinists are presently making the false assertion that Discovery Institute wanted Judge Jones to rule broadly on whether ID is science in the Kitzmiller case. All this comes in the wake of Judge Jones’ recent admissions regarding the activist nature of the Kitzmiller ruling. The Darwinist response to Judge Jones’s admissions is revealing: Rather than defending the Judge Jones activist behavior in the Kitzmller ruling, Darwinists have implicitly conceded the activism by changing the subject, and attacking us for allegedly encouraging its activism. As is the usual case when ID proponents make a good point, Darwinists try to deflect the issue by changing the subject and launching into personal attacks. This tells you that we have done something right here.

The two amicus briefs, the Discovery Institute’s Legal Amicus Brief (“DI Legal Brief”) and the Brief of Amici Curiae Biologists And Other Scientists In support of Defendants (“85 Scientists’ Brief”) were filed by Discovery Institute in the Kitzmiller case. The basic assertion from the Darwinists is that because those briefs discuss the issue of whether ID is science, that therefore we wanted Judge Jones to rule on that issue. The Darwinists are blatantly misrepresenting our arguments made in those briefs. In reality, if one actually reads those briefs in their entirety, they make it clear that:

  • (1) Discovery Institute wanted the Judge to issue a narrow ruling based upon the purpose prong of the Lemon test that did not address whether ID is science,
  • (2) It was the plaintiffs who raised the issue of whether ID was science to Judge Jones (not us), and
  • (3) Discovery Institute’s reasons for discussing whether ID is science were to rebut the plaintiffs false assertions and also to encourage Judge Jones to not rule broadly on that issue, thus denying the plaintiffs the broad ruling they requested but did not deserve.

Regarding (3), in fact, the DI Legal Brief specifically states that the “the plaintiffs’ request for broad and precedent-setting relief should be denied.” Again, the 85 Scientists’ Brief specifically asked Judge Jones to NOT define science and to NOT rule on the issue of whether ID is science:

The plaintiffs have invited this Court to determine the status of intelligent design as science. Because the definition of science and the boundaries of science should be left to scientists to debate, this Court should reject the relief requested by the plaintiffs, and affirm the freedom of scientists to pursue scientific evidence wherever it may lead.

To give a more detailed discussion of how our amicus briefs asked Judge Jones to make a narrow ruling in the case, below I re-post an exchange I had with a friendly Darwinist about this topic (edited for clarity):

Q. “Didn’t Judge Jones have to decide on whether ID was a science in order to decide if it was appropriate material for the biology classroom independent of the board’s motivations?”

My answer: No. We address this in our Montana Law Review article. In its present implementation, the Lemon test basically looks at 2 things to determine whether a government policy establishes religion: (1) motives behind the law; and (2) the effect of the law. Whether ID is science (an objective inquiry) can be irrelevant to the school board’s motives, which would result from a subjective inquiry. The reason the answer is “no” is because Judge Jones had clear subjective evidence of religious motives on the part of the Dover School Board (i.e. their statements about taking a stand for Jesus Christ, etc. at school board meetings) and thus none of Judge Jones’s expansive inquiry into the objective question of “Is ID Science?” was necessary for him to answer the subjective question “Did the school board have religious motives?”

Whether ID is science goes to the “effect” prong of the Lemon test. But here’s the important point to answer your question: if you find evidence for religious motives, the Supreme Court ruled in Edwards v. Aguillard that no inquiry into the effect prong (i.e. whether ID is science) is necessary: “[i]f the law was enacted for the purpose of endorsing religion, ‘no consideration of the second or third criteria [of Lemon] is necessary.'” Thus it wasn’t even necessary for Judge Jones to look at the effect of teaching ID (i.e. asking “is ID science?”) if he found religious motives. Judge Jones ignored this principle because he wanted to make a broad sweeping holding, i.e. be an activist judge (see

Regarding Dover School Board members Bonsell and Buckingham, in fact they provided ample evidence for religious motives. Judge Jones could have simply said “The Dover board had religious motives, so their policy is unconstitutional, and I can resolve this case without addressing the bigger question of whether teaching about ID has a secular effect.” In fact, I think that the correct outcome in this case would have been for the judge to rule that because Bonsell / Buckingham had religious motives, that therefore Dover’s specific policy was unconstitutional, and then he should have left untouched the question of whether ID has a secular effect (a question appropriate for a different case with different facts, such as where a judge finds ID was taught under legitimate secular motives). In fact, we advocated this in Discovery Institute’s Legal Amicus Brief which read:

Thus, whatever the merits and history of [Dover’s specific] policy, Amicus urges the court to reject plaintiffs’ claim that teaching students about the theory of intelligent design necessarily violates the Establishment Clause. If the Court strikes down DASB’s policy, Amicus urges the court to fashion relief that does not impugn the constitutionality of teaching about intelligent design, since policies permitting such instruction might reflect valid secular purposes and could enhance religious neutrality.

In this passage we unambiguously asked the judge to make a limited, narrow holding based only upon the religious motives of the school board, following Edwards. He chose to make an expansive holding that was unnecessary for the case. (I recommend you read our Montana Law Review article for more details on this topic.)

It’s also worth noting that regardless of what issues the parties in the case raise, a judge has discretion to rule as he or she sees fit, and a judge does not have to address an issue simply because one or both parties raise it. In fact, it is considered good judicial practice to limit a ruling to what is necessary in the case and not intrude into expansive questions that are unnecessary to the holding. Thus, the Supreme Court said in a famous case, Village of Euclid v. Ambler Realty:

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.

Some Darwinist bloggers must not have read our amicus briefs carefully. Our DI amicus brief makes at least 3 things clear:

  • (1) It was the PLAINTIFFS (not us) who were raising the issue of whether ID is science; they did so because they wanted an expansive ruling against ID from the judge.
  • (2) We were ONLY discussing the status of ID as science TO REBUT THE PLAINTIFFS’ FALSE ASSERTIONS that ID was not science.
  • (3) Our amicus brief discussed the issue to encourage the judge to make a NON-EXPANSIVE RULING. In fact, our discussion of whether ID is science was made for the purpose of convincing the Judge not to rule on the issue! If you don’t believe me, read the conclusion of DI’s amicus brief:

    Because the inclusion of intelligent design in the science curriculum can serve a variety of important secular purposes, and because it has a primary effect of improving science education and even promoting religious neutrality, the plaintiffs’ request for broad and precedent-setting relief should be denied. (emphasis added)

    The emboldened text clearly shows that we wanted a narrow ruling that did NOT address the issue of whether ID is science, and that we did not want the “broad” ruling desired by the plaintiffs. Thus, the whole point of our discussion of whether ID is science was actually to encourage the judge to NOT rule on that issue! There are at least 2 good reasons to adopt this position: (a) ruling on whether ID is science wasn’t necessary for Judge Jones’s holding in the case, and (b) it’s a complicated non-judicial matter that he as a judge has no business ruling on. We were clear that there was no reason for the judge to rule on these issues.

Re-read our amicus briefs through a strategic lawyer’s eyes, and you’ll see that what they basically say to the Judge is this: “We know that the Dover school board had religious motives, but that’s their problem, not ours, because that doesn’t mean that ID couldn’t be taught under legitimate secular motives. So we have no objection if you go ahead and strike down their policy on those narrow grounds of Lemon’s purpose prong. The plaintiffs want you to rule broadly that ID isn’t science but religion under Lemon‘s effect prong. But you shouldn’t rule broadly for 2 reasons (1) It isn’t necessary for your ruling on the narrow grounds of the “purpose prong” of the Lemon test; (2) ID is science, so you should not strike down ID generally–keep your ruling to NARROW GROUNDS and don’t try to enter the larger non-justiciable and complicated debate over whether ID is science. You as a judge aren’t qualified to settle those issues.”

In order to encourage the judge to understand that it was not appropriate for a court to enter a discussion of whether ID is science, we wrote in Discovery’s legal amicus brief:

“While Amicus believes that there are good reasons to regard intelligent design as scientific, Amicus recognizes that the question itself may be non-justiciable. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards.” Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004). Even expert philosophers of science have been unable to settle the question, “What is science?” Still less is this question subject to “judicially discoverable and manageable standards.” Insofar as plaintiffs base their argument on the claim that design is inherently unscientific, and thus inherently religious, finding the scientific status of intelligent design non-justiciable would undermine plaintiffs’ case.”

Also, you might want to re-read the 85 Scientist Amicus Brief we filed. It states nearly the same thing as the DI amicus, specifically stating that the Judge should not rule on whether ID is science:

The plaintiffs have invited this Court to determine the status of intelligent design as science. Because the definition of science and the boundaries of science should be left to scientists to debate, this Court should reject the relief requested by the plaintiffs, and affirm the freedom of scientists to pursue scientific evidence wherever it may lead.

In fact the very 1-sentence summary we give of this brief states, “The Nature of Science is not a Question to be Decided by Courts.”

Could we have made ourselves any clearer? We filed 2 briefs that scream out “Don’t rule on whether ID is science and don’t rule broadly like what the plaintiffs are asking you to do. It isn’t necessary for this case and a court isn’t the right body to settle this issue.”


Casey Luskin


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.



Kitzmiller v. Dover Area School District