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Rebuttals at Will Intelligent Design’s Legal Critics (Americans United) Retract Their Demonstrably False Claims?

Casey Luskin

Michael Behe and I have posted our first couple objections to the opening statements posted by critics of intelligent design (ID) on Before I discuss those, I want to provide the insightful comments of a friend who read the debates, and wrote me the following:

Just a quick perusal of the discussion page for the “Does Intelligent Design Have Merit” shows how the opponents of ID cannot even address the question from a scientific (methodological) standpoint. Eight of 12 comments on the Yes side deal with the scientific merits of ID and only one of 11 comments on the No side actually deal with scientific critiques of ID. Why can’t the opponents of ID respond in a scientific and methodic way to the question posed? Just my humble thoughts as a non-scientist observer.

This lurker makes a great point: Quite tellingly, the vast majority of the critics’ opening statements focus on harping upon the alleged religious motives, beliefs, and affiliations of ID proponents, or the larger philosophical implications of ID. I anticipated this tactic, and refuted it in my third opening statement titled, “Any Larger Implications Do Not Disqualify ID From Having Merit.”

With more rebuttals to come, Dr. Behe and I have now collectively posted 3 rebuttals to Americans United for the Separation of Church and State, as follows:

The third objection listed above is reprinted here below:

Will Americans United Retract Their Demonstrably False Claims?

By Casey Luskin

In its first opening statement, Americans United for the Separation of Church and State (AUSCS) makes various demonstrably false claims while arguing that “Intelligent Design is Unconstitutional.” AUSCS’s writer is apparently writing anonymously, but I suspect that he or she is a magician, because they think that that AUSCS can make various works published by ID proponents magically disappear simply by asserting that they don’t exist. In seriousness, the real question I will pose at the end of this rebuttal is Will the AUSCS be willing to retract its demonstrably false claims?

AUSCS’s Demonstrably False Claim #1:
AUSCS claims that ID’s “advocates seem unable to get their ideas published in peer-reviewed journals.”
This claim is demonstrably false. Intelligent design (ID) proponents have published peer-reviewed scientific articles supporting their pro-ID arguments. A listing of some of these articles can be found online at:

Peer-Reviewed & Peer-Edited Scientific Publications Supporting the Theory of Intelligent Design (Annotated), at

As explained on that page, some of the scientific journals and other prestigious academic sources that have published peer-reviewed scientific publications by ID proponents supporting core ID arguments include:

  • Protein Science
  • Chaos, Solitons and Fractals
  • Proceedings of the Biological Society of Washington
  • Journal of Molecular Biology
  • International Journal of Fuzzy Systems
  • Cambridge University Press
  • Annual Review of Genetics

The apparent inability of ID’s legal critics to even acknowledge the existence of the peer-reviewed pro-ID scientific articles does not inspire confidence in the strength or validity of their arguments.

AUSCS’s Demonstrably False Claim #2:
AUSCS claims that Discovery Institute was “[u]nable to respond to [Judge Jones’] powerful opinion” in the Kitzmiller v. Dover ruling. AUSCS must have missed Discovery Institute’s many responses to the Kitzmiller ruling. I should know about these responses: I spent many dozens of hours co-authoring both a book (titled Traipsing Into Evolution: Intelligent Design and the Kitzmiller v. Dover Decision)and a law review article, providing potent rebuttals to Judge Jones’ factual and legal claims in the Kitzmiller ruling. Not only did we respond to Judge Jones’ arguments in the Kitzmiller ruling in great detail, but to my knowledge our book was the first book published focused entirely on Judge Jones’ opinion. The AUSCS deals with our arguments in those rebuttals by claiming that those rebuttals don’t exist.

For readers who would like to read our rebuttals (including AUSCS’s writer) here are the citations (links are provided in the footnotes, below):

Had AUSCS read those sources, they would have learned that just some of the problems in Judge Jones’ Kitzmiller ruling include the fact that he:

  • Employed a false definition of ID that presumed that ID requires “supernatural creation” — a position refuted during the trial by ID proponents who testified in court;
  • Ignored the positive case for ID and falsely claimed that ID proponents make their case solely by arguing against evolution;
  • Overstepped the bounds of the judiciary and engaged in judicial activism by declaring that ID had been refuted when in fact the judge was presented with credible scientific witnesses and publications on both sides showing evidence of a scientific debate;
  • Used poor philosophy of science by presuming that being wrong precludes being scientific;
  • Dangerously stifled scientific advance by taking the level of support for a theory as a measure of whether an idea is scientific;
  • Blatantly ignored and denied the existence of pro-ID peer-reviewed scientific publications that were in fact testified about in his own courtroom;
  • Blatantly ignored and denied the existence of pro-ID scientific research and data that was in fact testified about in his own courtroom;
  • Adopted an unfair double-standard of legal analysis where religious implications, beliefs, and motives count against ID but never against Darwinism;
  • Violated a fundamental cardinal rule of constitutional law by declaring a religious belief to be false from the bench of a U.S. government court;
  • Engaged in much judicial activism by presuming that it is permissible for a federal judge to define science, settle controversial social questions, settle controversial scientific questions, settle issues for parties outside of the case at hand so that his ruling would be “a primer” for people “someplace else,” and declare certain religious beliefs to be false.

AUSCS praises Judge Jones’ Kitzmiller ruling, stating, “In promoting ID, the Dover board, Jones wrote, ‘consciously chose to change Dover’s biology curriculum to advance Religion. We have been presented with a wealth of evidence which reveals that the District’s purpose was to advance creationism, an inherently religious view, both by introducing it directly under the label ID…’.” Here, I agree with Judge Jones: The Dover Area School District had no idea what it was doing, and it DID have unconstitutional religious motives and they desired to advocate creationism. This is why Discovery Institute opposed Dover attempts to push ID into the curriculum both before and after they passed their ID policy: Dover had no idea what it was doing. As I wrote in my law review article:

“When the testimony at trial revealed the religious motives and questionable conduct of the individual school board members and the poor impression the board members had made upon Judge Jones, it became increasingly clear that the school board would lose. However, the Discovery Institute maintained that there was no reason for the judge to conflate the actions of the school board with those of the ‘IDM.’ There was also no reason for the judge to try to resolve the scientific controversy over whether a theory that pointed to intelligence as a possible explanation for a scientific phenomenon should be recognized as scientific.”

I have no stake in defending everything Dover did: they rejected the policy advice of Discovery Institute and paid for it dearly. Unfortunately, Judge Jones ruled on issues that were far broader than those necessary to resolve the case. For more details, see my fifth opening statement, “ID is Constitutional and has Education and Legal Merit.”

AUSCS’s Demonstrably False Claim #3:
As will be seen below, AUSCS makes the demonstrably false claim that Discovery Institute’s only response to Judge Jones was that we “accused Jones of plagiarizing portions of the ruling.” This is another blatantly false claim, for we never accused Judge Jones of plagiarism. In fact, we explicitly explained in our “Backgrounder on the Significance of Judicial Copying, plagiarism was not our argument:

Are you accusing Judge Jones of plagiarism or any other violation of judicial ethics? No. As the report reads, ‘Proposed findings of fact’ are prepared to assist judges in writing their opinions, and judges are certainly allowed to draw on them. Indeed, judges routinely invite lawyers to propose findings of fact in order to verify what the lawyers believe to be the key factual issues in the case. Thus, in legal circles Judge Jones’ use of the ACLU’s proposed ‘Findings of Fact and Conclusions of Law’ would not be considered ‘plagiarism’ nor a violation of judicial ethics.'”

What part of “Judge Jones’ use of the ACLU’s proposed ‘Findings of Fact and Conclusions of Law’ would not be considered ‘plagiarism’ nor a violation of judicial ethics” does AUSCS not understand? For more information, see the original report, “A Comparison of Judge Jones’ Opinion in Kitzmiller v. Dover with Plaintiffs’ Proposed ‘Findings of Fact and Conclusions of Law’.”

An Answer, and a Question for AUSCS:
Finally, AUSCS asks, “If the IDers have evidence, let’s see it.” It’s easy to pretend there is no scientific evidence for ID when you deny the existence of the peer-reviewed pro-ID scientific publications discussing that evidence. Regardless, my co-particiapnts and I have discussed much of this evidence in our opening statements, including:

My closing questions for AUSCS now are:

  • Will you admit that you were wrong about Discovery’s responses to the Kitzmiller ruling and ID’s peer-reviewed scientific articles?
  • Will you stop making these false arguments in future public venues?

I look forward to AUSCS’s response.

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.



Americans United for Separation of Church and StateJudge John E. JonesKitzmiller v. Dover Area School