Critique Concerning Legal Issues
Tim Sandefur takes on statements by Wells concerning legal issues surrounding the lawsuit over the Understanding Evolution website.
Posted by Timothy Sandefur on September 6, 2006 12:00 PM
Jonathan Wells (2006) The Politically Incorrect Guide to Darwinism and Intelligent Design. Regnery Publishing, Inc. Washington, DC.Amazon
If there’s something embarrassingly dumb to be done or said, it’s probably going to be done or said in the name of “political incorrectness”. That term was first used to bring attention to the political censoriousness at leftist epicenters in the 1990s, but it has mutated into an excuse for saying stupid, outlandish, misleading things. The Politically Incorrect Guide to American History was full of misrepresentations, politically-motivated elisions, and a neo-Confederate interpretation of the Constitution that embarrassed serious constitutional scholars. The Politically Incorrect Guide to Science was full of silly pro-“intelligent design” notions, and now The Politically Incorrect Guide to Darwinism and Intelligent Design by Jonathan Wells has come along to carry this tradition forward—if “forward” is the right term.
An indication of the astonishing degree of misrepresentation and outright lying that The Politically Incorrect Guide to Darwinism and Intelligent Design employs comes in Chapter 15 when discussing the controversy over an evolution website supported by a grant from the National Science Foundation. The Thumb covered this pseudo-controversy pretty thoroughly at the time. But here’s how Jonathan Wells describes it:
In 2005, a California resident sued the NSF and University of California for violating the First Amendment, but district court judge Phyllis J. Hamilton dismissed the lawsuit. So the governments of the United States and California now officially endorse religious views—and only those religious views—that are acceptable to Darwinists.
The citations provided for this statement are to the Discovery Institute’s blog and a report on (quelle suprise!) World Net Daily. The paragraph does not mention that the “resident” was the wife of an “intelligent design” activist and serial plaintiff Larry Caldwell. Nor does it even mention why Judge Hamilton dismissed the case. That decision, Caldwell v. Caldwell, 420 F.Supp.2d 1102 (N.D. Cal. 2006), was based on Caldwell’s lack of standing—a procedural matter having nothing to do with the religious issue at all. According to Judge Hamilton, “the court need[ed] not, and [did] not, reach the merits of the Establishment Clause claim” Id. at 1108.
Furthermore, Wells claims that the First Amendment “clearly prohibits the government from favoring the views of one religious group over another” (p. 178), which isn’t quite accurate. More precisely, the First Amendment prohibits the government from endorsing a religious viewpoint.
The distinction is important because the First Amendment does allow the government to endorse a great many truth claims. The government can say “X is true” except and only except in those cases where X is a religious claim and only a religious claim. If for example the government wishes to state that it is true that a match can start a fire, the government is free to do so, even if a particular religious group agrees with that statement. But the government is not allowed to declare that the doctrine of papal infallibility or reincarnation is true. The government is allowed to teach that some people believe in papal infallibility, or that some people believe in the trinity, because these are not religious claims; they are descriptions of fact that can or might be empirically verified to some degree.
The website about which Wells complains was funded at least partly by government dollars, and it declared that “most religious groups have no conflict [sic] with the theory of evolution or other scientific findings. In fact, many religious people, including theologians, feel that a deeper understanding of nature actually enriches their faith”. Now, whether or not a person agrees that religion and evolution are compatible—I don’t.—is not the same as saying that some people do believe this thing. And the fact that some people believe this thing is not a religious statement. There is nothing in the First Amendment prohibiting the government from saying it. Yet according to Wells, “Political scientist John G. West wrote in 2004: ‘Taxpayers might wonder why it’s the government’s business to tell them what their religious beliefs about evolution should or shouldn’t be’” (p. 179). That, of course, is not what the website did. It said only that some people believe this thing or that thing. Yet even this easy distinction is too much to demand of The Politically Incorrect Guide to Darwinism and Intelligent Design.
In Chapter 13 Wells focuses on the legal issues of teaching “intelligent design” in the classroom, and it too is full of this kind of misleading writing. The chapter begins by describing the case of public school teacher Roger DeHart, who “supplemented” his science classes with readings from Of Pandas And People, an “intelligent design” textbook that began life as a biblical creationism textbook. But Wells describes it this way:
For several years, biology teacher Roger DeHart had been teaching students the required curriculum about evolution, but he had also been mentioning intelligent design….
DeHart had the support of his school administrators and local school board, but the American Civil Liberties Union (ACLU) claimed that his practice amounted to religious proselytizing and “violates both state and federal laws.” The school district caved in to pressure from the ACLU, the National Center for Science Education (NCSE) and local atheists. DeHart was ordered to stop mentioning intelligent design, though he was told in 2001 that he could request approval to use supplementary materials critical of some of the evidence for Darwinian evolution.
You see, he was just mentioning “intelligent design” and was railroaded by a conspiracy of “local atheists”. And note the scare quotes around “violates both state and federal laws”. Wells doesn’t explain which laws those would be (e.g. the Establishment Clause of the First Amendment to the Constitution) or how they would apply in a case where a government employee is teaching religion to students. DeHart was careful to use the “intelligent design” movement’s best tactics, e.g. claiming that they are seeking only “free debate” and “teaching the controversy”. Because evolution as a scientific matter is true and because there is no genuine controversy over it, these tactics are simply mechanisms for sneaking religion into the public school classroom—a fact well covered on the Thumb.
Wells’s portrayal of DeHart as a martyr, chewed up in the great maw of atheist science, is typical of the doublespeak of “intelligent design” activists and is related to activists desire to portray themselves as an oppressed minority. We’re told that “Darwinism has serious problems with the evidence” (p. 147), which isn’t true, and that “Darwinists are opposed to mentioning scientific problems with their view” (p. 147), which isn’t true, and that “ID theorists are given no opportunity to respond” (p. 149) to their critics, which is amusing to find in a book by written a leading “intelligent design theorist” and released by a major publishing house. DeHart, in fact, chose to go to another school, a religious school, in fact, where he is perfectly free to teach the religious concept of “intelligent design”, without any oppression by the atheistic cabal that “intelligent design” activists like to pretend is ruthlessly suppressing dissent.
There are few legal claims in Wells’s The Politically Incorrect Guide to Darwinism and Intelligent Design; in fact, the book is so unserious as to quote from an episode of Friends in one marginal notation (p. 155). But Chapter 13 includes a brief whine about the Kitzmiller decision. The passage opens by claiming that the Discovery Institute “urged the [school] board to rescind the policy” of requiring that science students listen to a disclaimer about evolution (p. 154). (It doesn’t note that the district’s science teachers refused to read the disclaimer to their students.) This, of course, is not entirely honest; it would be more honest to say that the Discovery Institute abandoned the Dover School Board as soon as it became clear that that ship was sinking. That, at least, was the view of the Thomas More Law Center’s Richard Thompson, who said,
[The Discovery Institute] wrote a book, titled “Intelligent Design in Public School Science Curricula.” The conclusion of that book was that … ‘school boards have the authority to permit, and even encourage, teaching about design theory as an alternative to Darwinian evolution’ … and I could go further. But, you had Discovery Institute people actually encouraging the teaching of intelligent design in public school systems. Now, whether they wanted the school boards to teach intelligent design or mention it, certainly when you start putting it in writing, that writing does have consequences.
In fact, several of the members, including Steve Meyer, agreed to be expert witnesses, also prepared expert witness reports, then all at once decided that they weren’t going to become expert witnesses, at a time after the closure of the time we could add new expert witnesses. So it did have a strategic impact on the way we could present the case, cause they backed out, when the court no longer allowed us to add new expert witnesses, which we could have done….
So that caused us some concern about exactly where was the heart of the Discovery Institute. Was it really something of a tactical decision, was it this strategy that they’ve been using, in I guess Ohio and other places, where they’ve pushed school boards to go in with intelligent design, and as soon as there’s a controversy, they back off with a compromise. And I think what was victimized by this strategy was the Dover school board, because we could not present the expert testimony we thought we could present.
But Wells simply writes, “the Dover School Board ignored the Discovery Institute’s advice” (p. 155).
In a lovely example of ad hominem, Wells says that Dover citizens suing the school board were represented by “[t]he American Civil Liberties Union (ACLU)—the same organization that defends the right of Nazis to march publicly in support of their racist and anti-Semitic policies” (p. 155). Ah, yes, because ACLU is really a group of evil racists doing the leg-work for the Great Atheist Conspiracy. No mention of the ACLU’s defense of Christians, conservatives, and other generally pro-intelligent-design groups, as Ed Brayton has well documented.
Jonathan Wells claims that Judge Jones “was so impressed by the testimony and materials presented by the Darwinists that he apparently didn’t bother to read much of the material presented by their critics” (p. 155). Of course, it’s a very serious matter to accuse a judge of such misbehavior, but the opinion itself belies that fact. The long decision (58 pages in the final version) contains many citations of the record and discusses at length the credibility of the pro-intelligent-design witnesses—or rather the lack thereof. One need merely read the decision—which is too much, alas, for many people—to see this point refuted. As Craig Venter once noted, it’s common for people who lose a race to say “oh, I wasn’t really racing after all”. So, too, it’s common for those who lose a case to say the judge was just a schmuck anyway. After all, as Wells claims, Judge Jones was “[a]pparently not burdened with an excess of judicial restraint” (p. 155). Ah, judicial restraint, the last refuge of the scoundrel. I’ve written before about the meaninglessness of such terms. But so, too, did Judge Jones, whose refutation speaks for itself:
Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.
(Kitzmiller v. Dover Area School Dist., 400 F.Supp.2d 707, 765 (M.D. Pa. 2005))
This decision, Wells concludes, “intimidated” legislators in Ohio “into surrendering [their] critical analysis of evolution” (p. 156). Translated into plain language, this means that Judge Jones’s enforcment of the First Amendment persuaded Ohio officials not to start promulgating a religious viewpoint in government schools.
It’s telling, really, that “intelligent design” activists have to play such word games. “Intelligent design” is really a word-game anyway: a word game that replaces “religion” with “scientific theory”, “creation” with “design”, “miracle” with “irreducible complexity”, and so forth. This sad little shell game is all that anti-science activists have to offer. But it’s sad that they continue to find publishers willing to sell such pseudo-intellectualism to the public for a quick buck. As the great John Fogerty put it,
The little pig knows what to do, he’s silent and quick, just like Oliver Twist;
Before it’s over, your pocket is clean,
A four-legged thief paid a visit on you.
The PIG commonly fails to disclose the fact that quoted authorities are allied with the Discovery Institute. This is one example.