“This issue of separation of church and state is one that I personally take most seriously. The modern interpretation of that principle has been one of the healthiest aspects of our constitutional democracy. I like to quote what Justice [Sandra Day] O’Connor said in the McCreary opinion: ‘Why would we trade a system that has served us so well for one that has served others so poorly?’

In the courtroom, Rothschild is calm and confident, even a little eager. White shirt; charcoal suit; dark-plum tie. He pours bottled water into a Styrofoam cup, lifts a bulky three-ring binder filled with questions on tabbed pages, and carries both to a podium at the center of the courtroom. The questions map out a plan of attack, but he’s ready to improvise when a response suggests a new opportunity or exposes a weakness. “He is super smart, very thorough, and quick on his feet,” remarks co-counsel Vic Walczak, legal director for Pennsylvania’s ACLU chapter.

A survey carried out by the Pew Research Center for the People & the Press just before the trial began last fall showed that 42 percent of Americans embrace the Genesis account of creation as gospel and regard evolution with a skeptical eye. Although nearly half the population accepts that living things evolved over time, 18 percent of those believe evolution is guided by the divinity rather than natural selection. In the courtroom gallery, a reporter from Germany is asked what Europeans make of the trial. She rolls her eyes and whispers, “We thought this had all been settled long ago.”

One hundred forty-six years after the publication of Darwin’s revolutionary theory, 80 years after the Scopes “monkey trial,” 18 years after the Supreme Court ruled the teaching of creationism in public schools unconstitutional, Rothschild is stepping forward to face down the latest assault on evolution.

On this, the third day of the trial, Rothschild guides Professor Robert Pennock, a philosopher of science from Michigan State University, through hours of question-and-answer testimony.

“How do philosophers of science distinguish between science and non-science?” he asks.

“Philosophers of science focus on what scientists do,” responds Pennock, who is young and bearded and has a gee-whiz enthusiasm for his subject. “Science is a practice that deals with examining questions about the natural world, giving explanations about the natural world in terms of natural law, and offering hypotheses that can be tested against the natural world.”

Rothschild looks intently at the expert witness, giving small listening-nods as though affirming the points he makes.

Pennock is the author of Tower of Babel: The Evidence Against the New Creationism. He tells the court he has studied creationism for a long time, and intelligent design since it appeared on the American scene 15 years ago. Creationism, he explains, “is a rejection of evolution as science understands it.”

“Is intelligent design creationism?”

“It’s a form of creationism … They hold that you cannot have a natural explanation of biological complexity, and you need to have some special intelligence … that intervenes to produce [the natural world].”

Judge John T. Raulston, who presided over the Scopes trial, allowed only testimony on whether John Scopes had violated the law of Tennessee—he did—which made it a crime “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” The Kitzmiller judge is hearing expert testimony from philosophers, biologists, paleontologists, biochemists, education experts, theologians, and others. He wants to clarify not just whether intelligent design is religion, and hence unconstitutional, but if it is even science at all.

“Do you have an opinion about whether intelligent design is science?” Rothschild queries.

“Science is probably most characterized by its way of coming to conclusions,” Pennock answers. “It’s not so much the set of specific conclusions that it comes to but the way in which it reaches them … It gives natural explanations about the natural world. Intelligent design … wants to reject that. And so it doesn’t really fall within the purview of science.”

The resolution passed by the Dover school board said it was intended to make students “aware of gaps/problems in Darwin’s theory.” New guidelines required that a four-paragraph disclaimer be read to ninth-grade biology classes before they undertook the study of evolution, which is mandated by state standards. The statement cautioned that “[evolutionary] theory is not a fact” and that “gaps in the theory exist for which there is no evidence.” Intelligent design was offered as an alternative “explanation,” making Dover the first school district in the country to place it before students. Sixty copies of the ID book Of Pandas and People had been donated anonymously to the district, and students were informed that the “reference book” would be available in the high-school library. “With respect to any theory,” the statement advised, “students are encouraged to keep an open mind.”

Lawyers for the board have stressed that the curriculum add-on was a “modest change” aimed at improving science education and promoting critical thinking. Intelligent design would not be taught as a lesson nor would questions about it be allowed, and students were permitted to leave the classroom while the statement was read.

It turned out that it was the teachers who chose to “opt-out.” They refused to read the disclaimer, citing their code of professional conduct, which did not permit teachers to “knowingly misrepresent subject matter.” Intelligent design, they told the board repeatedly, is not science.

In January 2005, a school administrator stepped in to the classroom to read the one-minute statement to more than 40 students and then stepped out. No questions. No discussion. The teacher returned to present the Darwin lesson, and the students were left to wonder if perhaps the gaps and problems had something to do with God. Many of the parents had no doubts. By that time, the lawsuit against the board had already been filed.

More than a year of public meetings that led up to the curriculum change were well documented by the parents and teachers caught up in the dispute, which had also been closely followed and reported by two York County newspapers. Testimony from Barrie Callahan and other witnesses told how Buckingham and Bonsell called for “creationism” to be part of science instruction in Dover.

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©2006 The Pennsylvania Gazette
Last modified 03/01/06

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COVER STORY: Intelligent Demise
By Peter Nichols

Left to right: Lead plaintiff Tammy Kitzmiller,
Rothschild, and expert witness Robert Pennock.