Happy holidays and merry xmas to rational Christians: Judge Jones (a Bush 43 appointee) has not only found the obvious religious motivation in the Dover School Board’s actions, but also found the obvious religious motivation in the development of the intelligent design curriculum.
[decision available @ MD PA court website and also @ msnbc. News coverage at nyt 11/20; significant commentary at pharyngula and panda’s thumb; commentary roundup @ questionable authority] Additional commentary, added as I come across it: Ann Althouse had a great potential headline for the story: School Board in the Hands of an Angry Judge. Chortle. Timothy Sandefur laid out ten responses to complaints about Kitzmiller‘s legal analysis, authority, etc. Jasen Rosenhouse @ CSICoP offers a point-by-point summary.
This was nothing less than a judicial smackdown. Judge Jones, “out of an abundance of caution and in the exercise of completeness” (p.71), covered all possible arguments for ID as science — and frankly decimated them. Demolished? Destroyed? Devastated? So many verbs from which to choose. My take on the principal takehome points are this (1) ID is religion not science; (2) the Dover School Board intended to offer it as religion; (3) this is an establishment under both the endorsement test and the Lemon test no matter how you read them. I’m highlighting my favorite parts in that order, below the fold.
1. “You’re not fooling anyone with this ‘intelligent design is really science’ nonsense.”
The people in Dover know that ‘intelligent design’ is about a religious idea:
[I]n letter after letter and editorial after editorial, [Dover] community members postulated that ID is an inherently religious concept, that the writers viewed the decision of whether to incorporate it into the high school biology curriculum as one which implicated a religious concept, and therefore that the curriculum change has the effect of placing the government’s imprimatur on the Board’s preferred religious viewpoint. These exhibits are thus probative of the fact that members of the Dover community perceived the Board as having acted to promote religion, with many citizens lined up as either for the curriculum change, on religious grounds, or against the curriculum change, on the ground that religion should not play a role in public school science class. Accordingly, the letters and editorials are relevant to, and provide evidence of, the Dover community’s collective social judgment about the curriculum change because they demonstrate that “[r]egardless of the listener’s support for, or objection to,” the curriculum change, the community and hence the objective observer who personifies it, cannot help but see that the ID Policy implicates and thus endorses religion. [61-62]
ID is not “new scientific ideas”; it’s old-time religion:
We initially note that John Haught, a theologian who testified as an expert witness for Plaintiffs and who has written extensively on the subject of evolution and religion, succinctly explained to the Court that the argument for ID is not a new scientific argument, but is rather an old religious argument for the existence of God. He traced this argument back to at least Thomas Aquinas in the 13th century, who framed the argument as a syllogism: Wherever complex design exists, there must have been a designer; nature is complex; therefore nature must have had an intelligent designer. 
“We’re not saying [the designer] is God, just someone with the basic skill set to create an entire universe.” [paraphrasing Jon Stewart]:
Although proponents of the IDM occasionally suggest that the designer could be a space alien or a time-traveling cell biologist, no serious alternative to God as the designer has been proposed by members of the IDM, including Defendants’ expert witnesses. 
Professor Behe acknowledged that ID is implausible unless one believes in God:
[I]n turning to Defendants’ lead expert, Professor Behe, his testimony at trial indicated that ID is only a scientific, as opposed to a religious, project for him; however, considerable evidence was introduced to refute this claim. Consider, to illustrate, that Professor Behe remarkably and unmistakably claims that the plausibility of the argument for ID depends upon the extent to which one believes in the existence of God. (emphasis added [by the court]). As no evidence in the record indicates that any other scientific proposition’s validity rests on belief in God, nor is the Court aware of any such scientific propositions, Professor Behe’s assertion constitutes substantial evidence that in his view, as is commensurate with other prominent ID leaders, ID is a religious and not a scientific proposition. 
Intelligent design isn’t just religion, it’s a particular religious interpretation adhered to by a particular subset of Christians. Not all Christians interpret Genesis so as to see a conflict between science and religion. (And hey, there are other creation myths besides Genesis, you know. Could we spare a little attention for accidental creations or biological byproduct creations?):
The court in McLean stated that creation science rested on a “contrived dualism” that recognized only two possible explanations for life, the scientific theory of evolution and biblical creationism, treated the two as mutually exclusive such that “one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution,” and accordingly viewed any critiques of evolution as evidence that necessarily supported biblical creationism. [21-22]
The McLean court explained that: The approach to teaching ‘creation science’ and ‘evolution science’ . . . is identical to the two-model approach espoused by the Institute for Creation Research and is taken almost verbatim from ICR writings. It is an extension of Fundamentalists’ view that one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution. The two model approach of creationists is simply a contrived dualism which has no scientific factual basis or legitimate educational purpose. It assumes only two explanations for the origins of life and existence of man, plants and animals: it was either the work of a creator or it was not. [fn6]
[T]he [Dover] disclaimer relies upon the very same “contrived dualism” that the court in McLean recognized to be a creationist tactic that has “no scientific factual basis or legitimate educational purpose.” 
We do not find this false dichotomy any more availing to justify ID today than it was to justify creation science two decades ago. 
Some flavors of Christianity just aren’t Christian enough:
[I]t has become increasingly evident that it is the direction the board has now chosen to go, holding a certain religious belief is of paramount importance. [from Casey Brown’s resignation statement, at 124]
Atheist-baiting has apparently replaced the venerable traditions of red-baiting and dyke- and fag-baiting:
Casey Brown testified that following her opposition to the curriculum change on October 18, 2004, Buckingham called her an atheist and Bonsell told her that she would go to hell. 
Angie Yingling was coerced into voting for the curriculum change by Board members accusing her of being an atheist and un-Christian. 
The recommended ‘intelligent design’ text was demonstrably a ‘creationist’ text:
As Plaintiffs meticulously and effectively presented to the Court, Pandas went through many drafts, several of which were completed prior to and some after the Supreme Court’s decision in Edwards, which held that the Constitution forbids teaching creationism as science. By comparing the pre and post Edwards drafts of Pandas, three astonishing points emerge: (1) the definition for creation science in early drafts is identical to the definition of ID; (2) cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred shortly after the Supreme Court held that creation science is religious and cannot be taught in public school science classes in Edwards. This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content …. 
The more ID advocates talked, the deeper they dug themselves in:
[D]efense expert Professor Fuller agreed that ID aspires to “change the ground rules” of science and lead defense expert Professor Behe admitted that his broadened definition of science, which encompasses ID, would also embrace astrology. Moreover, defense expert Professor Minnich acknowledged that for ID to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural forces. 
“First they came for the biologists….”
William Dembski, ID advocate: “[E]ntire fields of inquiry, including especially in the human sciences, will need to be rethought from the ground up in terms of intelligent design.” 
The more we learned, the more it was obvious that ID is religion not science — and we’re not afraid to say so.
We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants’ conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science. To be sure, our answer to this question can likely be predicted based upon the foregoing analysis. While answering this question compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. … [W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. 
Here’s the fruit of weeks of study: ID is not science.
After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980’s; and (3) ID’s negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research. 
They got nothin’!:
ID proponents primarily argue for design through negative arguments against evolution, as illustrated by Professor Behe’s argument that “irreducibly complex” systems cannot be produced through Darwinian, or any natural, mechanisms. However, … arguments against evolution are not arguments for design. Expert testimony revealed that just because scientists cannot explain today how biological systems evolved does not mean that they cannot, and will not, be able to explain them tomorrow. As Dr. Padian aptly noted, “absence of evidence is not evidence of absence.”… Irreducible complexity is a negative argument against evolution, not proof of design, a point conceded by defense expert Professor Minnich. [71-72]
They know they got nothin’!:
Professor Behe’s concept of irreducible complexity depends on ignoring ways in which evolution is known to occur. Although Professor Behe is adamant in his definition of irreducible complexity when he says a precursor “missing a part is by definition nonfunctional,” what he obviously means is that it will not function in the same way the system functions when all the parts are present. For example in the case of the bacterial flagellum, removal of a part may prevent it from acting as a rotary motor. However, Professor Behe excludes, by definition, the possibility that a precursor to the bacterial flagellum functioned not as a rotary motor, but in some other way, for example as a secretory system. 
They got nothin’ times three!
Professor Behe has applied the concept of irreducible complexity to only a few select systems: (1) the bacterial flagellum; (2) the blood-clotting cascade; and (3) the immune system. Contrary to Professor Behe’s assertions with respect to these few biochemical systems among the myriad existing in nature, however, Dr. Miller presented evidence, based upon peer-reviewed studies, that they are not in fact irreducibly complex. 
First, with regard to the bacterial flagellum, Dr. Miller pointed to peer-reviewed studies that identified a possible precursor to the bacterial flagellum, a subsystem that was fully functional, namely the Type-III Secretory System. Moreover, defense expert Professor Minnich admited that there is serious scientific research on the question of whether the bacterial flagellum evolved into the Type-III Secretary [sic] System, the Type-III Secretory System into the bacterial flagellum, or whether they both evolved from a common ancestor. None of this research or thinking involves ID. [76-77]
Second, with regard to the blood-clotting cascade, Dr. Miller demonstrated that the alleged irreducible complexity of the blood-clotting cascade has been disproven by peer-reviewed studies dating back to 1969, which show that dolphins’ and whales’ blood clots despite missing a part of the cascade, a study that was confirmed by molecular testing in 1998. Additionally and more recently, scientists published studies showing that in puffer fish, blood clots despite the cascade missing not only one, but three parts. (1:128-29 (Miller)). … Moreover, cross-examination revealed that Professor Behe’s redefinition of the blood-clotting system was likely designed to avoid peer-reviewed scientific evidence that falsifies his argument, as it was not a scientifically warranted redefinition. [ouch] 
The immune system is the third system to which Professor Behe has applied the definition of irreducible complexity. … [I]n Darwin’s Black Box, Professor Behe wrote that not only were there no natural explanations for the immune system at the time, but that natural explanations were impossible regarding its origin. However, Dr. Miller presented peer-reviewed studies refuting Professor Behe’s claim that the immune system was irreducibly complex. Between 1996 and 2002, various studies confirmed each element of the evolutionary hypothesis explaining the origin of the immune system. In fact, on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty-eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that it was not “good enough.” [77-78]
They got nothin’ times infinity!
We will now consider the purportedly “positive argument” for design encompassed in the phrase used numerous times by Professors Behe and Minnich throughout their expert testimony, which is the “purposeful arrangement of parts.”
… As previously indicated, this argument is merely a restatement of the Reverend William Paley’s argument applied at the cell level. … Professors Behe and Minnich refuse to identify the designer, whereas Paley inferred from the presence of design that it was God. …
Indeed, the assertion that design of biological systems can be inferred from the “purposeful arrangement of parts” is based upon an analogy to human design. Because we are able to recognize design of artifacts and objects, according to Professor Behe, that same reasoning can be employed to determine biological design. Professor Behe testified that the strength of the analogy depends upon the degree of similarity entailed in the two ropositions; however, if this is the test, ID completely fails. Unlike biological systems, human artifacts do not live and reproduce over time. They are non-replicable, they do not undergo genetic recombination, and they are not driven by natural selection. For human artifacts, we know the designer’s identity, human, and the mechanism of design, as we have experience based upon empirical evidence that humans can make such things, as well as many other attributes including the designer’s abilities, needs, and desires. With ID, proponents assert that they refuse to propose hypotheses on the designer’s identity, do not propose a mechanism, and the designer, he/she/it/they, has never been seen. … Professor Behe’s only response to these seemingly insurmountable points of disanalogy was that the inference still works in science fiction movies.
… This inference to design based upon the appearance of a “purposeful arrangement of parts” is a completely subjective proposition, determined in the eye of each beholder and his/her viewpoint concerning the complexity of a system. As Plaintiffs aptly submit to the Court, throughout the entire trial only one piece of evidence generated by Defendants addressed the strength of the ID inference: the argument is less plausible to those for whom God’s existence is in question, and is much less plausible for those who deny God’s existence.
They got nothin’ times infinity squared.
ID proponents support their assertion that evolutionary theory cannot account for life’s complexity by pointing to real gaps in scientific knowledge, which indisputably exist in all scientific theories, but also by misrepresenting well-established scientific propositions. 
Did I mention how ID is religion not science?
After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community. ID, as noted, is grounded in theology, not science. [88-89]
2. The Dover School Board knew it was religion.
They knew it was religion, but they didn’t know much else.
Remarkably, the 6-3 vote at the October 18, 2004 meeting to approve the curriculum change occurred with absolutely no discussion of the concept of ID, no discussion of how presenting it to students would improve science education, and no justification was offered by any Board member for the curriculum change. Furthermore, Board members somewhat candidly conceded that they lacked sufficient background in science to evaluate ID, and several of them testified with equal frankness that they failed to understand the substance of the curriculum change adopted on October 18, 2004. In fact, one unfortunate theme in this case is the striking ignorance concerning the concept of ID amongst Board members. Conspicuously, Board members who voted for the curriculum change testified at trial that they had utterly no grasp of ID. … Geesey testified she did not understand the substance of the curriculum change, yet she voted for it. … Buckingham, Chair of the Curriculum Committee at the time, admitted that he had no basis to know whether ID amounted to good science as of the time of his first deposition, which was two and a half months after the ID Policy was approved, yet he voted for the curriculum change. … Cleaver admittedly knew nothing about ID, including the words comprising the phrase, as she consistently referred to ID as “intelligence design” throughout her testimony. … Superintendent Nilsen’s entire understanding of ID was that “evolution has a design.” [120-122]
They lied, they lied, they lied.
[O]ne consistency among the Dover School Board members’ testimony, which was marked by selective memories and outright lies under oath, as will be discussed in more detail below, is that they did not think they needed to be knowledgeable about ID because it was not being taught to the students. 
Finally, although Buckingham, Bonsell, and other defense witnesses denied the reports in the news media and contradicted the great weight of the evidence about what transpired at the June 2004 Board meetings, the record reflects that these witnesses either testified inconsistently, or lied outright under oath on several occasions, and are accordingly not credible on these points. 
Superintendent Bonsell lied.:
It is notable, and in fact incredible that Bonsell disclaimed any interest in creationism during his testimony, despite the admission by his counsel in Defendants’ opening statement that Bonsell had such an interest. Simply put, Bonsell repeatedly failed to testify in a truthful manner about this and other subjects. [After more than three pages of evidence about Bonsell’s interest in promoting “creationism”, at 97]
Superintendent Buckingham lied but told the truth at least once:
… Buckingham told Callahan that the [Biology textbook] was “laced with Darwinism” and spoke in favor of purchasing a textbook that included a balance of creationism and evolution. With surprising candor considering his otherwise largely inconsistent and non-credible testimony, Buckingham did admit that he made this statement. 
They lied separately, they lied together.
The testimony at trial stunningly revealed that Buckingham and Bonsell tried to hide the source of the donations [of 60 copies of Pandas because it showed, at the very least, the extraordinary measures taken to ensure that students received a creationist alternative to Darwin’s theory of evolution. … As we will discuss in more detail below, the inescapable truth is that both Bonsell and Buckingham lied at their January 3, 2005 depositions about their knowledge of the source of the donation for Pandas, which likely contributed to Plaintiffs’ election not to seek a temporary restraining order at that time based upon a conflicting and incomplete factual record. This mendacity was a clear and deliberate attempt to hide the source of the donations by the Board President and the Chair of the Curriculum Committee to further ensure that Dover students received a creationist alternative to Darwin’s theory of evolution. We are accordingly presented with further compelling evidence that Bonsell and Buckingham sought to conceal the blatantly religious purpose behind the ID Policy. [114-115]
Their sham was unavailing … and their lies further evidence of improper purpose.
Although Defendants attempt to persuade this Court that each Board member who voted for the biology curriculum change did so for the secular purposed of improving science education and to exercise critical thinking skills, their contentions are simply irreconcilable with the record evidence. Their asserted purposes are a sham. … Although as noted Defendants have consistently asserted that the ID Policy was enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking skills, the Board took none of the steps that school officials would take if these stated goals had truly been their objective. … Moreover, Defendants’ asserted secular purpose of improving science education is belied by the fact that most if not all of the Board members who voted in favor of the biology curriculum change conceded that they still do not know, nor have they ever known, precisely what ID is. To assert a secular purpose against this backdrop is ludicrous.
Finally, although Defendants have unceasingly attempted in vain to distance themselves from their own actions and statements, which culminated in repetitious, untruthful testimony, such a strategy constitutes additional strong evidence of improper purpose under the first prong of the Lemon test.
… Defendants’ previously referenced flagrant and insulting falsehoods to the Court provide sufficient and compelling evidence for us to deduce that any allegedly secular purposes that have been offered in support of the ID Policy are equally insincere.
Oh the irony:
Bonsell was specifically concerned that the teachers conveyed information to students in opposition to what parents presented at home leaving students with the impression that “somebody is lying.” 
It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy. 
Plus, these people are nuts:
In the midst of this panoply, there arose the astonishing story of an evolution
mural that was taken from a classroom and destroyed in 2002 by Larry Reeser, the head of buildings and grounds for the DASD. At the June 2004 meeting, Spahr asked Buckingham where he had received a picture of the evolution mural that had been torn down and incinerated. Jen Miller testified that Buckingham responded: “I gleefully watched it burn.” Buckingham disliked the mural because he thought it advocated the theory of evolution, particularly common ancestry. Burning the evolutionary mural apparently was insufficient for Buckingham, however. Instead, he demanded that the teachers agree that there would never again be a mural depicting evolution in any of the classrooms and in exchange, Buckingham would agree to support the purchase of the biology textbook in need by the students. (emphasis added [by the court]) [107-108]
3. And we’re not letting this particular sect use our schools to promote their special take on religion.
Stickers and disclaimers are not harmless and insignificant:
In summary, the disclaimer singles out the theory of evolution for special treatment, misrepresents its status in the scientific community, causes students to doubt its validity without scientific justification, presents students with a religious alternative masquerading as a scientific theory, directs them to consult a creationist text as though it were a science resource, and instructs students to forgo scientific inquiry in the public school classroom and instead to seek out religious instruction elsewhere. 
Scully: “Time can’t just disappear! It’s a universal invariant!” Mulder: “Not in this time zone.” (Pilot)
Science cannot be defined differently for Dover students than it is defined in the scientific community as an affirmative action program … for a view that has been unable to gain a foothold within the scientific establishment. [70-71]
If it walks like a canard…
Accepting for the sake of argument its proponents’, as well as Defendants’ argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. Moreover, ID’s backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID. 
And did you forget about the Pennsylvania Constitution?
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by lawto any religious establishments or modes of worship. [134-136 citing Art. 1 s.3]
Good night, and good luck.
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. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources. 
Internal citations omitted. Emphasis is as was published in the case.