Since the 1990s the Discovery Institute, a conservative think-tank, has tried to make it easier to teach intelligent design in public schools. They have had some successes, and one big setback: in 2005, the Institute and its allies lost Kitzmiller v. Dover Area School District, a landmark case that ruled it unconstitutional to teach intelligent design (ID) in public classrooms.

The Discovery Institute denies that the decade since Kitzmiller has been disappointing for them. Still, while the past ten years have seen some success for the intelligent design movement, it has not become the culture-sweeping campaign that some of its founders envisioned.

A recent law review article by legal scholar Casey Luskin, though, outlines a new position that might help bring intelligent design into the classroom—or at least back into the courts. Luskin’s strategy capitalizes on one of the thornier claims in the Kitzmiller decision, and it demonstrates how rhetoric used by New Atheists can sometimes backfire, actually making it easier to challenge evolution-only curricula in courts.

Luskin, until recently a staffer at the Discovery Institute, argues that a key, decades-old legal test has been applied inconsistently. Weakening the test, or throwing out the way it has been applied to ID, could reopen the legal question of teaching ID in public school classrooms.

To make sense of this, one needs to begin with the fallout from the Kitzmiller trial. In 2004, members of the Dover, Pennsylvania school board passed a requirement that students in biology classes hear a short statement informing them that “intelligent design is an explanation of the origin of life that differs from Darwin’s view.” Parents of some students sued on the grounds that this requirement constituted the endorsement of a religious viewpoint. In 2005 Judge John E. Jones III found in the plaintiffs’ favor, declaring that “ID is not science.”

The standard for determining whether a law or policy violates the Establishment Clause of the First Amendment comes from the 1971 Supreme Court ruling in Lemon v. Kurtzman. The so-called Lemon test has three prongs. A state action must satisfy all three of them in order to be considered constitutional. It must (with my emphases added):

“Have a secular legislative purpose” Not advance or inhibit religion as its “principle or primary effect” Not result in an “‘excessive government entanglement’ with religious affairs”

Under the Lemon test, the Dover school board didn’t have much of a defense, because the board members’ religious motives were pretty transparent. As Jones outlines in his opinion, “members of the [Dover School] Board spoke openly in favor of teaching creationism and disparaging the theory of evolution on religious grounds.”

As a result, Judge Jones could have just said Come on, the school board’s motives are obviously religious, and left it at that. But such a narrow ruling would have left the questions of constitutionality of teaching ID to another case.

Since the 1925 Scopes trial, there’s been a consistent pattern of “evolution trials” moving well beyond specific local issues to debate broader questions about religion and science. Jones followed that pattern. Instead of just ruling on the specifics of the situation in Dover, Jones went ahead and wrote an opinion about the very nature and constitutional status of ID. In doing so, he drew upon the second prong of the Lemon test, as well as the first: he said that the school board was motivated by religion (prong 1) and that teaching ID at all had the effect of advancing religion (prong 2).

In part, this was based on his judgement that the underlying theory of ID—which relies upon an intelligence beyond the scrutiny of natural laws—was religious. But Jones also ruled that teaching ID had a religious effect because a “reasonable, objective observer” aware of the origins of antievolution laws would know that teaching ID was promoting religion.

This appeal to history is a prominent part of Kitzmiller, and it provides the set up for Luskin’s article. Jones ruled that there were direct historical connections between ID and the fundamentalist antievolutionism of the 1920s, as well as the advocacy of creation science in the mid/late-twentieth century. Because of the long history of antievolutionism (previous versions of which had already been judged by courts to be religious), Dover students and other observers would reasonably understand a statement promoting ID as an endorsement of religion.

In the creation science trials of the 1980s, the courts drew upon the expert testimony of philosophers to try to draw a demarcation between science and religion, which met with some criticism among philosophers of science. In Kitzmiller, too, there were some philosophical arguments about whether ID could really count as a science given its appeal to causes outside natural law. Drawing on the history did not so much sidestep the philosophical debates as much as link ID to antievolutionary theories previously ruled religious by the courts.

But invoking history opens up new debates, which is where Luskin comes in.

It’s not just ID and antievolution that has historically found itself entangled with religious advocacy. According to Luskin, evolution’s history is also rife with supporters making religious or irreligious claims. When a New Atheist figurehead like Richard Dawkins claims that Darwin made it possible to be “an intellectually fulfilled atheist,” he substantiates the claim that evolution itself is not neutral when it comes to promoting or inhibiting religion. As Luskin argues, “If the public is aware of the close historical association between the advocacy of evolution and anti-religious activism, then the teaching of evolution may make religious Americans feel like political outsiders.”

Luskin draws on examples ranging from the Flying Spaghetti Monster to standard-but-oversimplified claims that Charles Darwin opposed natural theology to argue that evolution is hostile to religious views. Luskin concludes that the standard applied to ID in Kitzmiller, in which the court used public understanding of its historical origins to rule against it, could also force a court to determine that teaching evolution is itself not religiously neutral.

Luskin is right that there is a history of anti-religious invocation of evolution, but there’s also a long history of attempts to reconcile evolution and traditional religion, going back to Darwin himself.* There are even examples of theologians who go beyond reconciliation, arguing that evolution is a stronger basis for believing in God than special creation. Luskin’s article neglects this history and suggests that atheism is as intrinsic to evolution as belief in a supernatural creator is built into ID.

The idea that Darwinism leads one to atheism informs much of the so-called “conflict” of science and religion. The conflict view of this history is popular, but the facts are simply not on its side. Nonetheless it serves as a point of consensus used by both extremes to attack a range of interpretations.

In ignoring or disparaging the diversity of evolution-religion history, the so-called New Atheists are enabling precisely the argument that Luskin is making. In buying into this framework, some of ID’s most vocal critics make it easier for Luskin to make the case that an outside observer would think that teaching evolution promotes atheism. By analogy to Kitzmiller’s logic, for Luskin this would mean that it violates the Establishment Clause.

I asked attorney Eric Rothschild, who served as lead counsel for the plaintiffs in Kitzmiller, what he thought of Luskin’s argument. According to Rothschild, Luskin’s “evidentiary position has a false equivalence” because ID’s “entire scientific project is demonstrating the presence of a supernatural or divine actor intervening in the development of biological life.” One of the most damning facts that came to light in the Kitzmiller case was the discovery that the ID reference book the Dover board recommended had originally been written to teach “creation science” and that in many cases the phrase “creation science” was simply replaced with “intelligent design.”

It’s unlikely anyone will run back to court in the near term with Luskin’s argument. In the years since Kitzmiller, the political and legal strategy has changed for ID. The Discovery Institute has focused less on explicitly promoting ID in schools, instead advocating for “academic freedom” laws that would protect teachers and students who personally want to explore ID or other evolution “alternatives.” Both Tennessee and Louisiana have passed such laws in recent years, and neither law has been challenged in court.

Because the ID-promoting Dover, PA school board was replaced by the time the ruling was issued, Jones’s verdict was never appealed to a higher court. But if there is a next generation evolution trial, it will probably have to address Kitzmiller’s finding that teaching ID fails multiple prongs of the Lemon test.

Luskin’s article doesn’t refute the whole of Kitzmiller’s findings, but it lays out an argument against one important part of that ruling: the claim that antievolution’s religious history poisons its efforts to promote alternatives to accepted science. Luskin’s own account of the history of evolution may be selective and self-serving, but it could easily be used to convince a school board that the inherent atheism of evolution needs to be balanced by the inclusion of intelligent design.

Given the proliferation of new legislation regarding how science is taught, it’s entirely possible that Luskin’s argument may find itself incorporated into some future legal brief. In that light, it’s perhaps even more notable that legal scholar and Discovery Institute Senior Fellow David DeWolf has just announced his candidacy for Washington State’s Supreme Court.

*This post originally stated “Luskin argues not just that atheists have found evolution to be useful, but that evolution in itself is inherently anti-religious.” While Luskin does argue that many Americans have grounds to associate evolution with “anti-religious activities and rhetoric,” he does not state that evolution is inherently anti-religious. Instead, he writes that he is not “arguing that acceptance of neo-Darwinian theory mandates belief in atheism or abandonment of traditional theism.” We regret the error.

-The Eds.

Also on The Cubit: The shared assumptions behind creationism and anti-GMO activism in Europe

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