The Ancient of Days by William Blake © The Bridgeman Art Library / Nicholas Veasey

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."

An Education in Evolution

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.

Tree of life: journal page from Darwin exhibit at New York's American Museum of Natural HistoryPhoto: © By permission of the Syndics of Cambridge University Library

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."