IS IT SCIENCE YET?
THE CONSTITUTIONAL PROBLEMS WITH INTELLIGENT DESIGN

By Steven G. Gey
the David and Deborah Fonvielle and Donald and Janet Hinkle Professor of Law
Florida State University College of Law

EXECUTIVE SUMMARY
Although the Ohio State Board of Education has removed a reference to Jonathan Wells' book, Icons of Evolution, the concepts from Intelligent Design from his book and from references to websites containing Intelligent Design concepts are embedded in the current controversial lesson plan being considered by the Ohio State Board of Education. Accordingly, this plan is not only bad science; it is illegal.

BACKGROUND
       During the last decade the theory of creationism has once again become a focal point of battles in the public schools and boards of education across the country.  The scientific theory of evolution is being attacked in a variety of different contexts.  The new anti-evolution efforts include proposals excluding evolution from the state science standards and curriculum guidelines, including in state science curriculums religiously based creation theories as alternatives to evolution, altering science textbooks to diminish or eliminate references to evolution, and placing disclaimers on textbooks that include discussions of evolution.  The issue has even come before Congress in the form of the unsuccessful Santorum Amendment, which would have mandated that all schools receiving federal funds teach the new version of creationism.  Almost a century after the famous "monkey trial" of John Scopes, science educators are still forced to deal with the conflict between empirically based science education and derivatives of the Biblical
story of creation.

       The most recent version of creationism is oriented around the teaching of "intelligent design."  Intelligent design theory differs from earlier manifestations of creationism by avoiding references to biblical literalism, which were common during the Scopes era.  Intelligent design proponents do not leave themselves vulnerable, as earlier creationists did, to a detailed challenge about the precise contours of the day on which God created the earth, or the exact nature of the catastrophic worldwide flood.  But two central claims of earlier creationist theories remain at the core of intelligent design: 
First, the claim that biological entities in the physical world have not evolved naturally from lower-order to higher-order beings, and second, the claim that a supernatural intelligence intervened in the natural world to dictate the nature and ordering of all biological species.  The question is whether the recent rearticulation of creationist theory renders that theory sufficiently non-religious to satisfy the requirements of the First Amendment.

       The recent proposals to incorporate intelligent design into the public school curriculum and state science standards represent the third generation of creationism legislation.  The Supreme Court has already held that the first two generations of creationist legal mandates were impermissible establishments of religion in violation of the First Amendment.  The Court's analysis in these two cases applies directly to the present "intelligent design" version of creationism. 

       The first generation of creationism statutes prohibited public schools from teaching evolution.  The Supreme Court struck down one example of such a statute in the 1968 decision Epperson v. Arkansas, 393 U.S. 97 (1968).  In that decision the Court held that the Arkansas antievolution statute was unconstitutional because it was motivated by an impermissible religious purpose.  Under its modern Establishment Clause analysis, the Court requires all governmental statutes, regulations, and policies to have a secular purpose, a secular effect, and be free of any excess entanglement between church and state.  The Court reviewed the background of the Arkansas statute and found that "fundamentalist sectarian conviction was and is the law's reason for existence."  The Court held that the unconstitutional purpose was not necessarily to instill in school children a particular religious faith, but rather to prevent the dissemination of ideas that were perceived by some religious groups to cast doubt upon their religious doctrines.  Quoting one of its previous decisions, the Court emphasized that "the state has no legitimate interest in protecting any or all religions from views distasteful to them . . ."
      
       Opponents to evolution responded to Epperson by devising a second generation of anti-evolution statutes.  These were the so-called "balanced treatment" or "equal time" statutes. These statutes did not prohibit schools from teaching evolution, but rather required schools teaching evolution to give creationism "equal time."  In Edwards v. Aguillard, 482 U.S. 578 (1987), the Supreme Court held by a 7-2 vote that the Louisiana version of the "equal time" statute violated the Establishment Clause.  As in Epperson, the Court in Edwards held that the statute lacked a secular purpose.  Three factors were crucial to the Court's conclusion:  (1) the conflict between creationist doctrine and the scientific community's uniform acceptance of evolutionary theory; (2) the historical linkage between religious groups and proponents of creationist theory; and (3) the inherently religious nature of creationist theory.  The third Edwards factor is especially important in analyzing the third-generation intelligent design creationism statutes.  In determining that creationism is inherently religious, the Edwards Court focused on the theory's central proposition that a supernatural being created the world--a proposition that is also the defining element of intelligent design creationism.  The majority opinion in Edwards concluded that creationism is religious because the theory "embodies the religious belief that a supernatural creator was responsible for the creation of humankind."  Justice Powell's concurring opinion drove this point home even more forcefully:  "[C]oncepts concerning God or a supreme being of some sort are manifestly religious . . . . These concepts do not shed that religiosity merely because they are presented as a philosophy or as a science."
      
       The intelligent design theory that is the basis for the third generation of creationism legislation is both simpler and more imprecise than the version of creationism advanced in the first two generations of creationist legislation.  The theory has been simplified and sanitized in order to present the religious concept of creation in a secular package that can conform to the constitutional framework used by the Supreme Court in its previous creationism decisions. 
      
       Unlike the first and second generations of creationism, the third generation of "intelligent design" creationist theory contains few affirmative propositions other than the basic conclusion that the natural world was created by an "intelligent designer."  Much of intelligent design theory is devoted to negative attacks on the evidence supporting evolutionary theory, but with little or no suggestion of a comprehensive alternative scientific paradigm.  The third generation creationists have largely abandoned their predecessors' support for the more outrageous creationist claims, such as the claim that a single divinely ordained flood can explain the entire geological structure, or the demonstrably absurd claim that the earth is only a few thousand years old.  Having abandoned these details from the book of Genesis, intelligent design proponents are left with the simple proposition that God created the earth.
      
       Unfortunately, this is precisely the proposition that the Supreme Court focused on in holding that previous generations of creationist statutes were unconstitutional.  From a legal standpoint, the theory of intelligent design is not significantly different than the versions of creationist theory that preceded it.  When intelligent design theory is analyzed under the constitutional framework used by the Court to invalidate earlier creationist mandates, it is evident that legal requirements to teach intelligent design cannot satisfy the constitutional standard set forth in the Supreme Court's prior decisions.  Every major aspect of intelligent design supports this conclusion:  The absence of objective scientific support for intelligent design, the strong links between intelligent design and fundamentalist religious groups, the use of intelligent design to limit the dissemination of scientific theories that are perceived as contradicting religious teachings, and the fact that the irreducible core of intelligent design theory is what the Court has called the "manifestly religious" concept of a God or Supreme Being.  As Justice Powell noted in Edwards, "[t]hese concepts do not shed that religiosity merely because they are presented as a philosophy or as a science."  In sum, the incorporation of intelligent design into the public school and state science curriculums is not only bad science; it is illegal.
      
       Although the Ohio State Board of Education has removed a reference to Jonathan Wells' book, Icons of Evolution, the concepts from Intelligent Design from his book and from references to websites containing Intelligent Design concepts are embedded in the current controversial lesson plan being considered by the Ohio State Board of Education. Accordingly, this plan is not only bad science; it is illegal.
      
STEVEN G. GEY
David and Deborah Fonvielle and Donald and Janet Hinkle Professor of Law
Florida State University College of Law
B.K. Roberts Hall, Room 238
Phone: (850) 644-5467
Fax: (850)644-5487
sgey@law.fsu.edu

Education
J.D., Columbia University, 1982
B.A., Eckerd University, 1978
Considered one of the country's leading scholars on religious liberties and free speech, Professor Gey is author of the casebook, Cases and Materials on Religion and the State (Lexis-Michie 2001). He teaches a Church and State Seminar, Constitutional Law I and II, a First Amendment Seminar, Injunctions, and Public Interest Law, and has also taught Civil Rights Survey, Cyberlaw, and Federal Courts. Professor Gey has been named Professor of the Year by the Student Bar Association several times and has been a faculty advisor to Florida State University Law Review since 1987. Before joining Florida State University College of Law's faculty in 1985, Professor Gey was associated with the firm of Paul, Weiss, Rifkind, Wharton & Garrison in New York City. He received his J.D. in 1982 from Columbia University School of Law, where he was editor of Columbia Law Review.
     

-- Ohio Citizens for Science