The Worst Decision Never Appealed

creationist lawyer

The Worst Decision Never Appealed

By Robert R. Edwards, B.A., B.S., J.D.

On November 19, 2004, the Dover County Area School Board in Pennsylvania passed a resolution requiring ninth grade biology teachers to read their students a disclaimer concomitant with their mandatory teaching of evolution.1The short disclaimer made three basic assertions: (1) that evolution was a theory with gaps in the evidence and, like all theories, was subject to continuous testing as new evidence was discovered; (2) that the idea of Intelligent Design (ID) provided an alternative explanation for the origin of life; and (3) that, with respect to any theory, the students should keep an open mind. No questions were permitted, nor any further discussion of ID allowed.  In a decision issued December 20, 2005, and after a six-week non-jury trial, United States District Court Judge John E. Jones, III, declared the resolution unconstitutional, opining that it violated the “Establishment Clause” of the First Amendment to the United States Constitution. Kitzmiller v. Dover Area School District, et al., 400 F.Supp.2d 707 (M.D. Pa. 2005). Thereafter, eight of nine school board members lost reelection, and the school board president announced that the board would not appeal. I believe Judge Jones’ ruling to be among the worst decisions never appealed. 2

The “Establishment Clause” is found in the First Amendment to the United States Constitution.  It states in relevant part that the United States “Congress shall make no law respecting an establishment of religion…”3 Judge Jones held that the School Board’s resolution requiring the disclaimer to be read to ninth-grade biology students constituted a law respecting an establishment of religion and was, therefore, unconstitutional on its face.  Although his ruling spanned 139 pages and invoked hosts of legal precedent as well as expert and lay witness testimony, the progression of his reasoning was simple: Intelligent Design is the same thing as Creationism; Creationism necessitates a Creator; belief in a Creator is the sine qua non of “religion”, and therefore anything the School Board did to introduce Intelligent Design into the public school classroom constituted governmental “establishment of religion”.

At the core of Judge Jones’ opinion is his evident misapprehension of the word “religion”.  “Religion”, to Judge Jones, is limited to any belief system that includes a belief in the supernatural, a belief in God, or a belief in a creator.  His definition of “religion” excludes any belief system that disavows a belief in the supernatural, God, or a creator.  Therefore, while the government can sanction atheism in any form and forum, government-sanctioned reference to anything that even implicates theism constitutes an “establishment of religion” and is therefore unconstitutional as a matter of law, even if what is being implicated is true as a matter of fact.  In his own words, Judge Jones writes, “[w]hile ID arguments may be true, ID is not science”, and therefore may not even be referenced, let alone taught, in a public school.   Kitzmiller, 400 F.Supp.2d at 735; 737-738, 742-743.4

Judge Jones goes on to explain that “science” is limited to the search for natural causes as a way to explain natural phenomena, thereby rendering all possible supernatural causes “unscientific” by definition, regardless of the empirical and other evidence supporting them.  Id.5 at 735-736.  Thus, to the “separation of church and state”, Judge Jones added to the Constitution a “separation of church and science.”6   At the same time, Judge Jones acknowledged that there are “gaps” in evolutionary theory [id. at 743, 738], but he dismissed them, stating, “…just because [evolutionary] scientists cannot explain today how biological systems evolved does not mean that they cannot, and will not, be able to explain them tomorrow.”  Id. at 738.7  His dilemma is that trying to understand the science of origins while turning a blind eye to the most elementary of its conclusions (whether we are the product of Intelligent Design or of Chance) is like trying to understand a marionette without even considering whether its strings trace to a source. By this I do not propose that public high school science teachers suggest to their students any particular source for our existence, only to acknowledge, in light of the “gaps”, that one might be there.

As a young man, I rejected Christianity on emotional and philosophical grounds, not on scientific ones. When I went to college (a public university, by the way) I resolved to make “Truth”8 my “God”, and I sought Truth in almost every field of study I could fit into my schedule. I saw science as a tool to aid me in my search for Truth, and I vowed to accept the results of that search as my “religion”.9  Thus life, for me, was a search for Truth, “science”, a tool to help me in that search, and “religion”, the conclusion or series of conclusions I reached along the way.  My “fifty-cent” definition of “religion” is that religion is a “series of conclusions about responsibility derived from an inquiry into the Absolute and resulting in practical applications for everyday living”. But what religion really boils down to is simply what one believes to be true, and believes to be true in an absolute sense, whether based upon a belief in God (i.e., theism) or not (e.g., atheism and agnosticism). Whatever that may be, it formulates and informs one’s “belief system”, or “religion,” thereby dictating how he lives his life on a daily basis. The practical, day-to-day ramifications of concluding that God does not exist are as profound as the ramifications of concluding that he does.

I anticipate two immediate objections to the above: (1) one might say he never engaged in any such “search for Truth” and therefore my experience and definitions are inapplicable to him; and (2) one might deny the existence of anything that is absolute.  Both objections are easily dismissed.  For one to say he “never engaged in a search for Truth” is false on its face.  His search for Truth simply stopped upon his conclusion that Truth did not exist (i.e., that there are no absolutes), could not be found, or was not worth finding.  That does not mean, however, that he didn’t start and conclude, or that he doesn’t have a “belief system” formulated and informed by that conclusion.  His belief system is simply a function of admitted ignorance, and it has ramifications for how he lives his life on a daily basis (i.e., absent any consideration of, or responsibility to, ultimate Truth).  Whether or not Truth exists, however, is not a function of his decision not to seek it, and he can’t avoid it or its consequences by living as if it’s not there.  Truth exists of itself, in an absolute sense, and necessarily so.

To him who would say “there is no such thing as Truth” or “there are no absolutes”, I would simply point out that the assertion is itself absolute.  The absence of any such thing as an Absolute would mean there is at least one Absolute, that being the absence of all other absolutes.  Therefore, anyone who says “there are no absolutes,” or there is no Truth, necessarily posits an Absolute himself, thereby defeating his own argument.  Like me, he has a “belief system”.  His belief system is a function of his having concluded that everything is relative, and it is a conclusion about which he must be absolutely certain, otherwise he is in no position to deny the existence of any other absolutes.  His belief system, too, has ramifications for his life and how he lives it to the same degree that my belief system has ramifications for me and my life.  His belief system simply leads to the logical conclusion that he is not ultimately responsible to anyone but himself or, perhaps, his fellow man, for anything.  Mine leads to the conclusion that I am ultimately responsible to a Creator-God in everything.

Both of these objectors (the one who says he never engaged in a search for Truth and the one who says there is no such thing as Truth) can be included among the ranks of the “Secular Humanists,” or, less often, among the adherents of other “religions” (e.g., Atheism or Agnosticism) who doubt or deny the existence of God or at least live as if God doesn’t exist.10 This is not to say they cannot overlap, as would be the case with the Atheist or Agnostic who ascribes to a belief in the oxymoronic concept of a “secular morality,” thereby making him both a Secular Humanist and an Atheist or Agnostic at the same time.  To the contrary, they often do overlap in that each ascribes to a belief system, a central tenet of which presupposes the absence of God.  Nihilists share this central tenet as well, although they would not ascribe even to a secular “morality.” 

Look up or Google “secular humanism” and you will get numerous definitions that are all pretty much the same.   Wikipedia, for example, defines it to mean “Humanism, with regard in particular to the belief that humanity is capable of morality and self-fulfillment without a belief in God.”  This, again, would include Atheists and Agnostics who ascribe to a so-called “secular morality.”11  “Humanism,” according to Wikipedia, is a noun meaning “an outlook or system of thought attaching prime importance to human rather than divine or supernatural matters.”  Thus, “secular humanism” is a belief system attaching prime importance to human rather than supernatural matters and positing the idea that Man is capable of morality absent God or a belief in God.  “Religion”, as I have defined it, encompasses Secular Humanism (as well as Atheism, Agnosticism and Nihilism, etc.) as much as it does Christianity and Judaism (which are based on a belief in God), and Buddhism and Taoism (which are not based on a belief in God). Logically speaking, therefore, “religion” is not limited to institutionalized organizations or denominations or even to a belief in God.  “Religion” is simply what one believes to be true, and believes to be true in an absolute sense, whether rooted in a belief in God or not.  More importantly for our purposes, the United States Supreme Court apparently agrees with me.

Roy Torasco was an Atheist appointed by the Governor of Maryland to the office of Notary Public, but he was denied a commission because he would not declare his belief in God as required by the Maryland Constitution. Having lost in the trial and appellate courts below, Torasco appealed to the United States Supreme Court, and won. His primary argument on appeal was that requiring him to profess a belief in God violated the Establishment Clause because it required his ascription to a particular religion, i.e., any one of the many religions that are based upon a belief in God.  Torasco did not believe in God, and sought constitutional protection for that belief on religious grounds.  Writing for the Court in the 1961 case styled, Torasco v. Watkins, 367 U.S. 488 (1961), Justice Hugo Black confirmed Torasco’s constitutional right to maintain his atheistic views in defiance of the state’s demand that he renounce them, acknowledging in a footnote that “among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”  Torasco, 367 U.S. at 495, fn. 11 (emphasis supplied)(citations omitted).12 Thus, according to the United States Supreme Court, Secular Humanism is a religion, among “others” (e.g., Nihilism, Atheism and Agnosticism—Torasco was an Atheist), that does not postulate a belief in the supernatural, in God, or in a creator.

The ruling in Torasco was based primarily on the meaning of “religion” as used in the Establishment Clause, thereby extending its reach for Constitutional purposes beyond that of merely theistic belief systems and into atheistic and agnostic belief systems, including Secular Humanism “and others.”13 Thus, for Constitutional purposes, “religion” refers to the belief systems of the Christian, the Taoist, and the Atheist alike. Both legally and logically speaking, therefore, Atheists and Secular Humanists are no less “religious” than I am; their belief systems no less a “religion” than mine.  This leads to the inevitable conclusion that one cannot “opt out of” religion; one can only opt “within it”. That being the case, “science” is, or should be, a tool employed to search for Truth, wherever that tool may lead, because it will inevitably lead to the foundational basis for one “religion” (i.e., belief system) or another.14 And this brings us back to Judge Jones and Kitzmiller.

Again, the progression of Judge Jones’ reasoning was simple: Intelligent Design is the same thing as Creationism; Creationism necessitates a Creator; belief in a Creator is the sine qua non of “religion”, and therefore anything the School Board did to introduce Intelligent Design into the public school system constituted an “establishment of religion” in violation of the Constitution.  Given that Atheism, Agnosticism and Secular Humanism are “religions” as well, however, the teaching of Evolution (which is the sine qua non of Atheism, Agnosticism and Secular Humanism) constitutes an “establishment of religion” in the public school system to the same degree as does or would the teaching of Intelligent Design.  The teaching of either or both formulates and informs the belief systems of the students to whom they are taught, thereby kick-starting their search for Truth and ultimately dictating how they live their lives on a daily basis.

Judge Jones’ failure to grasp this simple truth lies at the center of his erroneous reasoning process.  Limiting his definition of “religion” to a belief system dependent upon the supernatural, God, or a creator, Judge Jones reasoned that evidence which supports Intelligent Design leads to “religion”, (and therefore referencing it in a public school was unconstitutional, and teaching it, “unscientific,” by definition), but that evidence which supports Evolution does not lead to “religion”, and is therefore “scientific” and permissibly taught in public schools under the Constitution.  Accordingly, per Judge Jones’ ruling, the teaching in a public school of anything that undermines secular evolutionary theory, even if true, would be unconstitutional because it would necessarily point to the supernatural, God, or a creator.  Though still not persuasive, Judge Jones’ reasoning would at least have been logical if he had acknowledged expressly that there are only two explanations for the origin of life—creation or evolution—and that evidence which tends to support one, necessarily tends to undermine the other.  But he did not.  Instead, Judge Jones dismissed this truism as a “false dichotomy”, or “contrived dualism.”  Id. at 738, see also id. at 725.  Like other judges and Justices before him, however, Judge Jones failed to proffer a single alternative theory or explanation for the origin of life, notwithstanding all those “experts” at his disposal.15 

Moreover, by concluding as he did (that doing anything in a public school to undermine Evolution was and would be unconstitutional because it would necessarily point towards a creator), Judge Jones’ validated implicitly the truism he denounced explicitly16--that there are two, and only two, mutually exclusive theories for the origin of life and that, to the same extent certain arguments and evidence undermine one theory, they necessarily support the other.17  In like manner, to the same extent the State promotes one theory of origin, it necessarily demotes the other.  If Evolution is the Nation’s officially sanctioned theory of origin, as Judge Jones would have it, then Atheism, Agnosticism, Secular Humanism and/or any and all other non-theistic belief systems, are its officially sanctioned religions notwithstanding the overwhelming majority of Americans who believe in God. 

These truisms alone should be sufficient to justify the study of Intelligent Design alongside the study of Evolution in our public schools. At the very least, ID should warrant a reference by way of disclaimer as the Dover County Area School Board tried to provide. The goal of science, and particularly the science of origin, should not be to inculcate into the minds of its students one religious view or another (e.g., atheism or theism), but to have them consider the arguments and evidence that supports or undermines each theory of origin (i.e., creation and evolution), then ultimately decide for themselves which or what is true based upon all of the evidence at their disposal. They can iron out the details elsewhere, such as in classes on religion, theology, and philosophy, etc., or at the beach.18 But they are not well-served by eliminating from the evidence at their disposal all of that which undermines one of two mutually exclusive theories of origin, along with all of the “positive” evidence that tends to support the alternative theory.  Far from “stifling” critical thinking,19 pointing out acknowledged “gaps” in evolutionary theory should inspire the budding young scientist to fill those gaps in, assuming of course that evolution is true and that there is or may be as-of-yet undiscovered evidence with which to prove it.    

Central to Judge Jones’ conclusion of law (i.e., that reading the school board’s disclaimer would constitute an establishment of religion) is his finding of fact that the “religious nature of ID would be readily apparent to an objective observer, adult or [ninth grade] child.”  Id. at 718 (emphasis supplied).  If Judge Jones would substitute the word “implications” or the word “ramifications” for the word “nature”, he would be precisely correct.  The religious implications and the religious ramifications of Intelligent Design should be readily apparent to an objective ninth-grader or adult, as should be the religious implications and ramifications of Evolution.  But I submit that the religious “nature” of Intelligent Design must not be as “readily apparent” to a ninth-grader as Judge Jones would have us believe.  Among other things, it took him six weeks of trial and thousands of pages of expert and lay witness testimony to discern the “nature” of ID for himself, and then another six weeks to commit his conclusions to writing; and still he got it wrong because he failed to appreciate the fact that the “nature” of Evolution is just as “religious,” or more accurately, “non-religious,” as that of ID. 

I submit it took Judge Jones that long, in part, because of his misapprehension of the word “religion” and, in turn, its “nature”.  “Nature” refers to the essence of something, e.g., Truth, as it stands and whatever it is.  Truth itself is not “religious” by any definition.  Truth is simply Truth.  Whether we evolved or were created is a matter of fact, or truth, not a matter of religion or faith  It is the implications and the ramifications of that truth (the “series of conclusions” that one draws from an inquiry into Truth, or into the Absolute) that constitute “religion”, not Truth’s “nature.”  Therefore, neither Evolution nor Intelligent Design are “religious” by “nature,” but the implications and the ramifications of both are “religious”, and equally so. 

How any of this would have been perceived by a ninth-grader in the Dover County area, we do not know. Again, no jury was assembled (and, by law, it would have been inappropriate to assemble a jury in this case) and Judge Jones took no testimony from ninth-graders.  Instead, he explained:

It is important to note that a reasonable, objective student is not a specific, actual student, or even an amalgam of actual students, but is instead a hypothetical student, one to whom the reviewing court imputes detailed historical background and knowledge, but also one who interprets the challenged conduct in light of that knowledge with the level of intelligent sophistication that a child of the relevant age would bring to bear.

                                                                   * * * * *

An objective student is also presumed to know that the Dover School Board advocated for the curriculum change and disclaimers in expressly religious terms, that the proposed curriculum change proposed massive community debate over the Board’s attempt to inject religious concepts into the science curriculum, and that the Board adopted the ID policy in furtherance of an expressly religious agenda…Additionally, the objective student is presumed to have information concerning the history of religious opposition to evolution and would recognize that the Board's ID Policy is in keeping with that tradition…Moreover, the objective student is presumed to know that encouraging the teaching of evolution as a theory rather than as a fact is one of the latest strategies to dilute evolution instruction employed by anti-evolutionists with religious motivations.

Id. at 723, 728 (emphasis supplied).20

In other words, the “objective ninth-grade observer” was merely Judge Jones, sitting up on his bench tapping his pen to his chin, and reflecting back perhaps on the “level of [his] intelligent sophistication” in the ninth-grade, but imputing to himself at that time knowledge he had acquired only as of the date of his decision.  He subjected that knowledge to a tortuous application of law and a vacuous application of logic, all on the false premise that science and religion are not only incompatible, but mutually exclusive; and then concluded, simplistically, that public schools are supposed to teach “science”, not “religion”, and that the school board was trying to poison the Petri dish by injecting “religion” into “science.”  Well, he was having none of that. 

Had the school board appealed Judge Jones’ decision, his decision might have been upheld and it might have been reversed.  The Supreme Court might even have elevated to a holding that which it relegated to a footnote in Torasco; or, conversely, the Supreme Court might have receded from what it acknowledged in Torasco and explained how it could be that Atheism and Secular Humanism aren’t “religions” after all.  Either way, an appeal would have put the issue front and center, and its resolution would have clarified the law for public schools and their school boards that want Intelligent Design considered alongside of Evolution in the public classroom.  But there was no appeal and so, for now, we can only speculate.  Meanwhile, ninth-graders in Dover County, Pennsylvania, are required to accept evolutionary theory as fact without any consideration of its only alternative.  In effect, they are being induced to conclude that they are accountable to no one and no Thing, save for the basest of instincts supposedly evolved out of nothing.  It is no wonder if they live their lives accordingly.

Epilogue—Judge Jones Responds

I spent two years after law school working for a federal District Court Judge in Tampa, Florida, a federal trial court judge at the same level as Judge Jones.  They are among the most dedicated, often overburdened, upright and bright attorneys the United States legal system has to offer.  Notwithstanding the demands on his time, Judge Jones took the time to read and respond to the article you’ve just read and I feel it incumbent upon me to bring attention and call respect to that kind of dedication and professionalism.  While the response was more personal than legal, I want to thank him publicly for the civility in offering it and commend him for the effort it took to do so, to respond to an attorney he doesn’t even know on a topic about which we vehemently disagree when he has seemingly nothing to gain in the process.  As I told Judge Jones upon receipt of his e-mail, my view of his opinion remains precisely the same, but my view of him as a Judge and fellow attorney changed, and drastically so. 


1Teachers, parents and students were all given the right to “opt out”.  Teachers could opt out by having a proxy read the disclaimer, and students could opt out via their own decision or that of their parents.  

2In fairness to Judge Jones, he was constricted by U.S. Circuit and Supreme Court precedent; but I submit his application of that precedent to the facts of this case was wrong.  Moreover, had his decision been appealed, it would have afforded the Supreme Court an opportunity to reconsider not just his faulty applications of logic and law, but some of what I believe to be errant Circuit and Supreme Court precedent as applied.   

3The first ten amendments to the United States Constitution are known as the “Bill of Rights”.  Along with the Constitution, the Continental Congress passed the Bill of Rights in 1787 to protect the individual states from interference by the federal government. In a series of decisions beginning in the 1890’s, however, the United States Supreme Court turned the Bill of Rights inside out through something that became known as the “Incorporation Doctrine”.  By virtue of the Incorporation Doctrine, federal courts may now invoke the Bill of Rights to change, dictate, and otherwise “interfere with” the rights of individual states, specifically reserved to them in the Tenth Amendment.  Thus the shield designed to protect states from federal intrusion was wrested from the states by the United States Supreme Court and melded into a sword to be wielded by the federal government against the now defenseless and unarmed states.  It was by virtue of the Incorporation Doctrine that Judge Jones could apply to the Dover County Area School Board an amendment written to be applied only against the federal government and, specifically, against the United States Congress.

4Judge Jones concluded that ID was “not science” because science is limited to what can be observed, tested, replicated and verified.   Kitzmiller, 400 F.Supp2d at 735. Apparently lost on Judge Jones is the fact that evolution cannot be observed, tested, replicated or verified.

5Id.” is lawyer-speak [as one of my colleagues put it] for “see previous citation.” In this instance, for example, it refers the reader back to the Kitzmiller decision, at pages 735-736.

6Judge Jones called ID an “interesting theological argument,” Kitzmiller, 400 F.Supp.2d. at 745-746, but ultimately dismissed it as  “a religious alternative masquerading as scientific theory”.  Id. at 728-729.

7Note the presumption that “biological systems evolved.” Elsewhere in his decision, however, Judge Jones purports to express complete agreement with the basic assertions in the disclaimer: (1) that evolution was a theory with “gaps” in the evidence; (2) that ID “may be true” and therefore provided another possible explanation for human origins; and (3), I can only hope, that students should keep an “open mind”.

8I capitalize the “T” in “Truth” because I am referring here to truth in an absolute sense.  In other words, “Truth” [upper case “T”] is that which is “true” [lower case “t”] in an absolute sense.   See text infra.

9Christians refer to this as the study of “General Revelation”, as opposed to “Special Revelation”, which is that revealed in the Bible.   It was that search in General Revelation that first led me to the God of the Judeo-Christian Bible, and not because some creation science teacher rammed it down my throat, but because everything I studied made sense only in the light of Christianity.  To borrow from C.S. Lewis, “I believe in the Sun not just because I can see it, but because by it I can see everything else. “

10Strictly speaking, the objectors could be Nihilists, and therefore not Secular Humanists, Atheists or Agnostics, though very few people are true Nihilists.  Even so, Nihilism is just another “religion,” as I have defined it, as are Atheism, Agnosticism and Secular Humanism.  Atheists, Agnostics, Nihilists and Secular Humanists can be “lumped” together for our purposes because they share a common denominator: each lives his life as if God doesn’t exist.   See footnotes 11, 12 and 13, and related text, infra.

11Atheists and Agnostics who don’t ascribe to even a secular morality are more closely associated with Nihilists than with Secular Humanists.  To distinguish between the four, Atheists believe that there is no God, Agnostics don’t know whether there is a God or not, and Secular Humanists just live as if there is no God, whether they believe in the existence of God or not.  Nihilists don’t believe in anything, including a “secular morality”, and so, they too, live as if there is no God.  They are, in effect, those who say “there are no Absolutes or absolutes, no Truth and no truths.”  Each of the four constitutes a “religion,” as I have defined it, and both Atheism and Agnosticism overlap with Secular Humanism and Nihilism to the extent that adherents of all four live as if there is no God.   

12While I have quoted here from a footnote in the Court’s opinion, the text of that opinion also distinguishes between “religions based on a belief in the existence of God” and “religions founded upon different beliefs,” i.e., the non-existence of God, ala Nihilism, Atheism, and Agnosticism.  Torasco, 367 U.S. at 495 (emphasis supplied).

13Given that the central tenet of those “other” religions is the absence of a belief in God, Nihilism, Atheism and Agnosticism (each of which denies or doubts the existence of God) would necessarily constitute a “religion” for purposes of the Constitution as well as for purposes of my definition.  See footnote 10 , 11, and 12, supra.

14I think permission to follow the evidence wherever it leads is at the core of freedom and intellectual integrity.

15Any suggestion that we came from aliens, for example, begs the question, “Who created the aliens?”

16Judge Jones also validated the truism by acknowledging the dichotomy, or dualism, between “God-friendly science” and “that other science”.  Kitzmiller, at 729; see also, id. at 731-732.

17I recognize that school of thought that proposes perhaps God is behind evolution, having started the process and then allowing it to evolve.  While I don’t share that view, it is not my point here to discredit it.  My point is that ultimately, behind it all, at the state of “origin,” either there is a Creator-God or there is nothing—or at least nothing beyond some “primordial ooze” that has existed since time immemorial.  Either we were created by Some Thing infinitely greater than ourselves or we evolved from something (or nothing) infinitesimally lesser than ourselves.

18 But evidently not at home.  Judge Jones found that “directing students to their families to learn about the ‘Origins of Life’…‘reminds [them] that they can rightly maintain beliefs taught by their parents’, thereby stifling the critical thinking that the class's study of evolutionary theory might otherwise prompt…”  Id. at 726 (emphasis supplied).

19See footnote 18, supra.

20The italicized assertion (in bold) is astonishing.  Judge Jones shows his incredible bias here by averring, almost as a matter of law, that evolution is true as a matter of fact.