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Judge Jones Said It, Media Matters Believes It, That Settles It

We recently responded to Media Matters’s attempt to revise the history of Discovery Institute’s opposition to pushing intelligent design in public schools. Well, the controversial far-left “watchdog” group now has a follow-up post, by blogger Simon Maloy, trying to link Tennessee’s academic freedom legislation to “creationist efforts to inject religion into public school science classes” from way back in the 1980s. Valerie Strauss — another reporter with a history of inaccurately reporting Discovery Institute’s policy — has uncritically reposted the new Media Matters piece at the Washington Post.

Too bad there’s a small detail that undercuts Media Matters’s fundamental argument: Tennessee’s law contains an express provision stating that it does not protect the teaching of religion (including creationism), and only protects the teaching of science:

This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.

Failing to show that the bill actually permits the teaching of creationism, Media Matters adopts the standard fallback tactic of sneering insinuation and arguments by free association. This is where things get a little bizarre. The author, Simon Maloy, discusses a bunch of old creationism cases from the 1980s like McLean v. Arkansas or Edwards v. Aguillard, apparently hoping that readers will get confused and think those cases are related to Tennessee’s academic freedom legislation. However, those laws expressly required teaching things like “evidences for creation” or “creation-science” — in contrast to Tennessee’s law which expressly prohibits the teaching of creationism. Of course Media Matters never quotes the laws struck down in those cases, so their readers will never learn that Tennessee’s law looks nothing them.

(For more information on those 1980s creationism cases, please see my law review article, Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the Teaching of Biological Origins, 32 Hamline University Law Review 1-64, published by Hamline University School of Law in 2009.)

Finally, Media Matters offers its readers a recapitulation of the Kitzmiller v. Dover case — a case that did not deal with academic freedom legislation at all. The idea seems to be that invoking Dover completes the chain that links academic freedom legislation with “creationism.” Simon Maloy argues that academic freedom legislation is a post-Dover innovation, but this is not correct. As I showed in an earlier post, Mr. Maloy is simply uninformed: we opposed mandating ID and supported teaching critique of evolution long before Dover. Indeed, the first academic freedom bill was submitted in the spring 2004 — before we ever heard of the Dover case.

The new Media Matters post takes Judge Jones’s ruling in the Kitzmiller v. Dover case as if it were nothing short of gospel truth, claiming that the judge, “methodically dismantled that case for teaching ID as science.” In the past, we’ve called this the “Judge Jones Said It, I Believe It, That Settles It” approach to intelligent design. In this same credulous spirit, Simon Maloy quotes a couple of words from a press release we issued the day that the ruling was issued, calling Judge Jones an “activist,” as if that’s all we have had to say in response. But we’ve published many articles providing detailed responses rebutting and refuting many of Judge Jones’s inaccurate claims in the ruling. Readers may want to refer to these for more in-depth responses on both Judge Jones’s scientific and legal claims:

Reading those, you’ll learn that just some of the problems with Judge Jones ruling include the facts that he:

  • Employed a false definition of ID, presumed that it 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 his role as a judge and engaged in judicial activism. Jones declared that ID had been refuted when in fact he had been 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 it is scientific or not;
  • Blatantly ignored and denied the existence of pro-ID peer-reviewed scientific publications that were in fact the subject of testimony in his own courtroom;
  • Blatantly ignored and denied the existence of pro-ID scientific research and data that was likewise the subject of testimony in his own courtroom;
  • Made numerous inaccurate (or at least easily challenged) scientific claims about the evolution of the bacterial flagellum, the blood clotting cascade, and new genetic information;
  • Adopted an unfair double standard of legal analysis where religious implications, beliefs, motives, and affiliations 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. court;
  • Engaged in further 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.”

Media Matters may attack us for calling Judge Jones “activist,” but even a leading anti-ID legal scholar, Boston University law professor Jay Wexler, has argued that “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, 93 (2006) (emphasis added).) Indeed, we’ve looked at scholarly definitions of judicial activism and showed why Judge Jones admitted his own actions fit those definition. See our articles including “Judge Jones Admits the Activist Nature of Kitzmiller Ruling on Lehrer NewsHour” for details.

There’s one final argument that Media Matters makes — and it’s the one that most clearly exposes how their attack fails. Author Simon Maloy cites the “Wedge Document” that allegedly proves Discovery Institute is driven by religious motives. (See our response to this charge here.) Meanwhile it turns out that Media Matters has its own religious — or rather, anti-religious — motives, aiming specifically to target “Christian-influenced” groups.

Of course the folks at Media Matters are entitled to any views on religion that they care to embrace. However, attacking someone else for their alleged religious agenda, when you have your own anti-religious agenda, is a form of hypocrisy that we see all to often among Darwin lobbyists. They attack Darwin critics for supposedly having religious motives but then expect to get free pass for their own.

It’s time to take a step back and have a little reality check here. What instigated these posts from Media Matters was apparent concern about Tennessee’s academic freedom legislation. Readers would be well advised to look again at what Tennessee’s law actually says:

  • “The teaching of some scientific subjects required to be taught under the curriculum framework developed by the state board of education may cause debate and disputation including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning.”
  • “Neither the state board of education, nor any public elementary or secondary school governing authority, director of schools, school system administrators, or any public elementary or secondary school principal or administrators shall prohibit any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught within the curriculum framework developed by the state board of education.”

Compare that benign, defensible language with the way heads are exploding in the Darwin lobby, and you’ve got quite a contrast.


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 DistrictMedia Matters