Last fall, as he prepared to take on the legal case of a lifetime, Eric Rothschild paid a visit to the American Museum of Natural History in New York. His interest centered on a new exhibit on Charles Darwin. He walked past the starting, and starring, attraction, two living, dome-shelled Galapagos turtles; the Bible and the pistol that Darwin brought onboard the HMS Beagle; artifacts like Darwin's schoolboy magnifying glass and the rock hammer that he used on geological expeditions as a university student; and curiosities like the skeleton of a giant anteater, with the distinctive long nose that is strangely well-suited for its feeding imperatives.
Rothschild '89 lingered over a Darwin sketch of the Tree of Life from his 1837 notebook. The sketch showed how species might evolve into new "gradations." At the top, Darwin had written, "I think."
The thinking was rooted in observations Darwin made as he traveled around the world from 1831 to 1836, in the role of ship's naturalist aboard the Beagle. Pondering variations among Galapagos mockingbirds, he began considering the evolution of species, writing in his notebook, "If there is the slightest foundation for these remarks the zoology of Archipelagoes--will be well worth examining; for such facts [would] undermine the stability of Species." He published Origin of Species in 1859. One early reaction came in a letter, displayed in the museum, from Darwin's old geology professor at Cambridge. The letter proclaims that the study of nature hinges on metaphysical thinking and not just on close observation. "A man who denies this is deep in the mire of folly."
Almost a century and a half later, evolution is still under attack as folly--or worse, immorality--and Rothschild has been conspicuously caught up in the battle. In October 2004, the school board in the small town of Dover in central Pennsylvania voted in a new requirement for high-school biology teachers. They would have to read a statement to students asserting that evolution is just a theory, not a fact, and proposing intelligent design--the idea that a supernatural entity has intervened in the history of life--as an alternative. According to the statement, Darwin's theory "is not a fact. Gaps in the theory exist for which there is no evidence.... Intelligent Design is an explanation of the origin of life that differs from Darwin's view." Students would be urged "to keep an open mind" toward "any theory."
Back in 1999, Rothschild, a Philadelphia-based partner in the law firm Pepper Hamilton, had worked with the National Center for Science Education, which supports the teaching of evolution in public schools. He then became a member of an NCSE legal advisory panel. He says he has a longstanding interest in constitutional law. "I'm particularly protective of the Establishment Clause principle of separation of church and state. I think it's one of the bedrock principles that keep our system of government and our democracy working." When he learned about the Dover case, he contacted the ACLU and Americans United for Separation of Church and State, which had filed suit on behalf of eleven parents of children in the Dover schools.
Believing the school board's decision to be incomprehensible--and indefensible--the parents had contacted the American Civil Liberties Union and sued the district to stop the teaching of intelligent design. They argued that the board's decision violated the First Amendment; in their view, the board acted with a religious purpose and its actions had the effect of furthering an inherently religious concept. Rothschild arranged for his firm to provide pro bono representation for the plaintiffs.
For six weeks, beginning in late September, the trial was argued in Harrisburg, Pennsylvania, before U.S. District Judge John E. Jones III, nominated to the bench by President Bush. The Dover Area School District was represented by lawyers from the More Law Center in Michigan, which says its purpose is "to defend and protect Christians and their beliefs" in the larger culture. Both sides had agreed to a bench trial--a trial without a jury--as is common in First Amendment cases, where arguments hinge on legal interpretations rather than factual matters.
Rothschild's side was contesting the classroom presence of intelligent design. Its proponents argue that life is too complex to arise from unguided processes. Features like the human eye, they say, operate too exquisitely to be the result of natural selection.
Evolutionary scientists reach a different conclusion. Says Duke's Matt Cartmill, professor of biological anthropology and anatomy, "The human eye is manifestly a punk piece of design." With his glasses in hand, he adds, "Look, the focusing mechanism stops working after forty years. I've got a camera that's older than that, and its focusing mechanism works fine. How come the Japanese can build a focusing mechanism that lasts for sixty years and God can't? Well, the answer is God can, in a turtle.
"Early mammals were nocturnal creatures with small eyes, and visual precision was not important to them. And they lost a fair amount of the ancestral reptilian eye machinery. So, the few mammals that have evolved color vision and focusing have done so with desperate makeshifts. After about forty years, the lens doesn't have any elasticity left in it, and the muscles contract."
To Cartmill, a former president of the American Association of Physical Anthropologists, "The theory of evolution is one of the great intellectual triumphs of the human species. It explains and accounts for a whole host of phenomena that were simply incomprehensible under the pre-evolutionary sets of assumptions," including the imperfections of adaptation like the human eye.
The Dover case (Kitzmiller v. Dover Area School District) was the first test of the constitutionality of intelligent design in the public schools. Unlike lawyers in other cases involving evolution--including the Scopes "Monkey Trial" of 1925--Rothschild and his team didn't shy away from a discussion of science. He and his colleagues, he says, are accustomed to crafting a courtroom presentation "that deals with a complicated subject matter, but in a way that is accessible and compelling." As a young associate, he had worked on the litigation that followed the Three Mile Island nuclear accident.
Rothschild steeped himself in legal precedents, notably a 1982 case before a U.S. district court, McLean v. Arkansas Board of Education, which invalidated the teaching of creationism in public schools, and Edwards v. Aguillard (1987), in which the Supreme Court struck down a Louisiana law that required creationism to be taught alongside Darwinism. McLean, he says, turned in part on the use of expert evidence. In arguing the Dover case, he says, he and his team wanted "to put on a case that would give the judge the evidence he needed to strike down the specific policy by the school board, but also to really zap the nature of intelligent design.
"And so we brought in a biologist, a paleontologist, a philosopher of science, a theologian, an educator. Intelligent design has this sort of superficially impressive scientific facade. But we felt that if we just dug underneath it and used the engine of cross-examination, we could really expose how flimsy intelligent design is as a scientific proposition."
It's easy to understand why the propositions of intelligent design--at least in the broadest sense--appeal to conservative Christians, according to David Steinmetz, a Duke Divinity School professor who teaches church history. Writing in The Christian Century Magazine as the Dover case was being argued, Steinmetz said, "As long as all Christians, conservative and liberal alike, confess that their God is the 'Maker of heaven and earth' and the 'creator of all things, visible and invisible,' they are on record as supporters of what looks for all the world like intelligent design. Christians have always brushed aside the notion that the world is self-generating, a random concatenation of miscellaneous atoms accidentally thrown together by no one in particular and serving no larger purpose than their own survival. The first article of the Christian creed could not be clearer: The world exists by the will of God. No intelligent designer, no world."
Still, he says, evolutionary thinking and religiosity need not be mutually exclusive. The story of creation--like the story of the prodigal son--might be seen as a parable, as deriving its power "independent of the question of whether they actually happened in space and time." Genesis answers the question of why the world exists, but not of how it came to be. Believers in intelligent design, says Steinmetz, are disingenuous in arguing that their view is religiously neutral. They have "reversed the proper order of knowing," as he puts it. "People do not believe in an intelligent designer because they observe in nature the marks of intelligent design. Indeed, the opposite is true. People find intelligent design in the natural order because they believe on other grounds in the existence of an intelligent designer."
From his reading of the intelligent-design record, Rothschild suspected that a star witness for the defense, Michael Behe, a biochemist from Lehigh University in Pennsylvania, would wither under tough questioning. Behe, on the stand, argued that intelligent design is "a scientific theory that proposes that some aspects of life are best explained as the result of design." Denying that intelligent design is rooted in religious beliefs or convictions, Behe said the concept "is based entirely on observable, empirical, physical evidence from nature plus logical inferences." The "best, most visually striking" example of design, he testified, is a bacterial flagellum, which he compared to an outboard motor that bacteria use to swim. The flagellum, he claimed, represents a "purposeful arrangement of parts" that "bespeak design."
Rothschild led Behe through a long discussion of bacterial basics. "Now, the intelligent designer," Rothschild asked, "when he was forming a bacterial flagellum millions or billions of years ago, you're not suggesting he was actually modeling his design after a manmade rotary motor which didn't exist until the last century?" Wouldn't a credible explanation, he wondered, be an evolutionary explanation--that is, a subset of parts eventually evolved to become, through natural selection, the bacterial flagellum?
And, asked Rothschild, wouldn't noxious entities like the AIDS virus and anthrax qualify as designer products? "Can you explain why would the intelligent designer design an irreducibly complex system and then another one to combat or fight it?"
In his questioning of Behe, who wrote a major text of intelligent design, Darwin's Black Box, Rothschild pounded away particularly on the nature of science. His strategy, he says, was to get the adherents of intelligent design to acknowledge that "intelligent design is explicitly an attack on how science is currently practiced, and the only way you can call intelligent design science is if you redefine science to allow for supernatural causation. So that was what we presented, the argument that you can't have the supernatural be part of science. It doesn't mean the supernatural isn't true. It doesn't mean God doesn't exist. God could very well exist, but that's not knowable by science."
Behe turned out to be an unwitting contributor to that strategy. At one point, Rothschild surrounded him with a pile of fifty-eight articles, nine books, and a couple of book chapters, all of which documented the evolution of the immune system. In Darwin's Black Box, Behe claims that there was no way to get from the precursor to the final immune system; he could not find a single peer-reviewed article, he wrote, on how the immune system evolved. Rothschild says, "He has raised the bar for what science has to demonstrate, so that you have to almost evolve the immune system in the lab in front of his eyes to satisfy him. It's really very insulting to all the scientists who do this research and publish these articles, saying, none of it is good enough for me. And at the same time, he doesn't submit any of his own articles for peer review."
At the trial, Rothschild pointed out that evolutionary theory has produced 140 years of scientific papers. "Zero is the number of articles in peer-reviewed scientific journals that argue for intelligent design of complex molecular systems." There are "gaps or unexplained phenomena" in all scientific theories, including germ theory, atomic theory, and plate tectonics, Rothschild said. "You're not aware that students are taught some other theoretical perspective so that they can understand the facts and not confuse germ theory with germ fact?" Why should evolution, he inquired, be singled out for its problematic qualities?
Intelligent design, Behe conceded, doesn't accommodate the common definition of a scientific theory, at least the definition outlined by the National Academy of Sciences--a well-substantiated explanation of some aspect of the natural world that can incorporate facts, laws, inferences, and testable hypotheses. Under Behe's broad definition, wouldn't astrology be considered a scientific theory, even though it proposes no explanation for physical laws? Rothschild asked. "There are many things through the history of science which we now think to be incorrect which would fit that definition," responded Behe. "Yes, astrology is, in fact, one, and so is the ether theory of the propagation of light."
Rothschild noted that no major scientific organization has endorsed the science or the teaching of intelligent design, and that even Behe's closest colleagues in Lehigh's biology department uniformly support evolutionary theory and see no basis in science for intelligent design. "Although I do think that intelligent design is well substantiated, I think there's not ... an external community that would agree that it was well substantiated," Behe said.
It may be scientifically insubstantial, but the Dover policy would seem to square with the sentiments of much of the American public. A Harris poll conducted last June showed that 55 percent of adults surveyed believed that children should be taught creationism and intelligent design along with evolution in the public schools. The same poll found that 54 percent did not believe humans had developed from an earlier species. Such persistent anti-evolutionary thought in America has a lot to do with American religiosity. In his classic Anti-Intellectualism in American Life (1962), historian Richard Hofstadter observes that the Scopes trial put into high relief "the juncture between populist democracy and old-fashioned religion."
In a 1988 essay, "Religion and the Resurgence of Conservatism," Duke professor of political science Michael Gillespie and Michael Lienesch, a colleague at the University of North Carolina at Chapel Hill, noted an apparent paradox with politics and religiosity: The United States, unlike Britain--where the currency now carries Darwin's image--has no established church. But that fact has forced religious denominations to struggle for political power as one of numerous interest groups and has led them to forge strong connections with government. Historically, they wrote, Evangelicalism in particular has influenced American politics through its egalitarian and individualistic impulses. It has also campaigned against aspects of modernization and secularization, particularly the perceived breakdown of social mores. Evangelicals offered themselves as "a rallying point for conservatives to take the offensive in reasserting their role as cultural custodians, defenders of traditional rural and small-town values."
By the 1920s, custodial conservatives were looking askance at classrooms accommodating Darwin. That sort of accommodation would fire up their moralistic crusade. More than seventy years later, former Speaker of the House Tom DeLay, reflecting on the Columbine High School massacre, ascribed youth violence in part to "the teaching of evolution in the schools."
But the debate reveals more than the pull of religion; it also points to distrust of the expert and the intellectual. William Jennings Bryan's "full-throated assaults upon the 'experts' were symbolic of the sharply deviating paths being taken by the two sides," according to Hofstadter. Taking that idea into the present, Franklin Foer, a senior editor at The New Republic, argued last summer in the magazine that, "Since its inception, modern American conservatism has harbored a suspicion of experts, who, through adherence to inductive reasoning and academic methodologies, claim to provide objective research and analysis." The Bush administration, in his view, "takes the radically postmodern view that 'science,' 'objectivity,' and 'truth' are guises for an ulterior, leftist agenda, that experts are so incapable of dispassionate and disinterested analysis that their work doesn't even merit a hearing."
Duke philosophy professor Alexander Rosenberg contrasts American cultural tendencies--large membership in religious institutions, disdain for the cultural elite, resistance to authority, and broad acceptance of the idea that one's station in life is earned and not the product of random forces--with the opposite tendencies in European societies. Rosenberg was cited in the Dover testimony; the defense referred to one of his articles in the journal Biology and Philosophy, which, by their interpretation, documented the culturally "destructive power" of Darwinian theory. On matters of science, Americans show "a huge schizophrenia," he says. They're eager to claim the benefit of scientific advances. But they often see science as inappropriately privileged or just another special interest. (A cartoon that's become popular with his colleagues shows a conversation between a doctor and a creationist-patient; the doctor says he needs to know "whether you want me to treat the TB bug as it was before antibiotics or as the multiple-drug-resistant strain it has since evolved into.")
"Even in the university, you've got academics in humanities departments, postmodernists, deconstructionists, people who are on the anti-science side of the culture wars," says Rosenberg. "They'll make common cause, in fact, with the fundamentalist Christians in their repudiation of the special authority of science as a description of reality--except when they flick on a light switch, or get on an airplane, or go to the doctor. They have nice rationalizations for that schizophrenia. But in my opinion, it's just a silly attitude." Among academics, he says, advancing the agenda of the Enlightenment has become unfashionable.
A world that's disordered and changeable isn't a God-deprived world, says David Steinmetz of the Duke Divinity School. But a world in which the end point of human life is purely the passing on of DNA--Darwinism understood as an extreme materialistic philosophy--is not going to be seen as theologically defensible.
Steinmetz is sympathetic to the views of the archbishop of Vienna, Christoph Schonborn, a theologian who is close to Pope Benedict XVI. Last summer, in an op-ed column in The New York Times, he wrote, "Evolution in the sense of common ancestry might be true, but evolution in the neo-Darwinian sense--an unguided, unplanned process of random variation and natural selection--is not." Steinmetz says the notion of a universe that's random, purposeless, and pitiless, where life begins as an accident or a cosmic afterthought, isn't particularly new. The idea that the universe comes into being by atoms bumping into each other was argued by Lucretius, the ancient Roman philosopher.
"But, then, you have to explain other things, don't you? You have to explain the existence of pity in a pitiless universe. You have to explain mercy and kindness. You even have to explain, from time to time, sanctity. The universe should have no place for any of those things. And yet it does. So you can accept the notion that there has been change over time; animals do, in fact evolve--you can go through the layers of fossils and see the changes. But you can, at the same time, reject the idea of aimlessness. There are some things that are simply beautiful in their structure and operating mechanisms."
Biology may be beautiful, and so may religion, but the issue of the origin of life is up for grabs, says Matt Cartmill, the biological anthropologist. "The basic problem is we just don't have the direct evidence. We don't have rocks from the relevant period, because old rocks are rare. Old rocks get eroded out of existence by rain and buried by tectonic plate shifts."
"There are really two questions here," he adds. "One is how did life get started? I don't think anybody really knows how life got started. You can say, if you want, that divine intervention must have been necessary. All you're saying, though, is that you don't have an explanation: I don't believe differently, and therefore it didn't happen differently. That's not a very good argument. The reason that intelligent design isn't an alternative theory is that it isn't a theory. What does it predict? Well, it doesn't predict anything. There simply isn't anything that follows from the idea that, let's say, human beings talk because God wants them to talk. It's another way of saying, I don't know why human beings talk from the standpoint of theory construction.
"But the question of the origin of life is different from, let's say, the question of the origin of grasshoppers or pheasants or aardvarks or human beings. Those things we have evidence for; they fit general patterns that we know something about."
Evolution doesn't just reward randomness, Cartmill says. It's a process of random change coupled with selection for the characteristics most likely to produce success. "That's how animal breeding, or artificial selection, works. You wait until a nifty mutation turns up, and then you glom onto it and breed to it. Darwin's argument was that nature does the same thing, except more slowly and less efficiently--and without any intervention of intelligent planning."
From the courtroom in central Pennsylvania, Judge Jones intervened strongly in the Dover intelligent-design controversy. His opinion, handed down in late December, was withering. The board's policy was "imprudent and ultimately unconstitutional," he ruled, and the citizens of the Dover area were poorly served by the group that pushed for the change. Intelligent design is not science, and it "cannot uncouple itself from its creationist, and thus religious, antecedents." The board relied solely on advice from religiously minded organizations, not scientists or science educators, he found. "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." He saw it as "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 new policy.
Eric Rothschild says he wasn't surprised that his legal team's arguments prevailed in the case. "I felt extremely strongly that we were right on two levels. One, the evidence of the board's religious purpose was overwhelming." The trial brought up the so-called "wedge document," prepared by the Seattle-based Discovery Institute, which associates Darwinism with atheism and moral decline. The document, drafted in 1999, calls for a science consonant with Christian convictions, and embraces intelligent design as "a wedge" in the battle of ideas. "Second, if we could present all the scientific evidence and have the opportunity to cross-examine the defendant's experts, the case that intelligent design is religious and not scientific was overwhelming. I wanted it to be virtually impossible for a judge who sat and listened closely to the evidence to rule any way other than in our favor."
Rothschild says he hopes the firmness of the Dover ruling will stymie further attempts to introduce intelligent design into the classroom. After all, he says, he and his team never felt they had a bad day in court. (In a survival-of-the-fittest episode, Dover voters threw the school board out of office even before the judge's verdict.)
The advocates of intelligent design are apparently, however, highly adaptable. Near the end of the Darwin exhibit in New York, visitors find two symbols of different viewpoints. One is a display of bone structures that showcases the morphological relationship of forelimbs across species. Those same structures, originating in a common ancestor, evolved so as to allow chimps to climb trees nimbly, whales to exercise their flippers for moving effortlessly through water, and bats to fly via their well-honed wings. And just around the corner, as another element of the exhibit, is a sticker formerly placed in biology textbooks in Cobb County, Georgia. It states that "Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered."
Just a week after the Dover trial concluded, the Kansas Board of Education voted in a new set of standards that question the primacy of evolution in the teaching of biology. Among the changes was a broad redefinition of science. According to the redefinition, science is just one of many explanations of natural phenomena, including supernatural causes. That notion, says a statement from the American Academy for the Advancement of Science, overturns "one of the cornerstones of scientific practice for more than three centuries." With four out of ten Americans accepting biblical creationism, there will be plenty of challenges--in the courtroom and the classroom--for Darwin's defenders.