By now you may have seen the opinion Kitzmiller v. Dover Area School District, the intelligent design case just handed down yesterday from the Middle District of Pennsylvania. I spent my subway-strike day at home musing over the lengthy text.
My overall impression was that this was an easy case. For the “secular purpose” analysis under Lemon v. Kurtzman, 403 U.S. 602 (1971), the record here was dripping with evidence that the school board’s purpose in adopting the statement was religious. The fact seemed particularly bad here on failures to effectively distinguish between intelligent design and creationism.
I thought one of the most interesting lines of analysis was the court’s concern with presenting only “dualities” rather than a range of critiques. By presenting to the students only one other option (ID) rather than a host of arguments which might help them probe the contours of the theory of evolution, the Dover statement simply fell too neatly into the pattern of previous cases where courts had stuck down as unconstitutional efforts to include creationism in the science curriculum.
For example, take a look at the discussion of McClean (at Kitzmiller 21-22), where the court found it was especially problematic to present only two possible explanations—either the scientific theory of evolution or biblical creationism, and to treat the two as mutually exclusive such that “one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution,” and accordingly viewed any critiques of evolution as evidence the necessarily supported biblical creationism.
Perhaps one of the most important cultural challenges we face now is how to move beyond the dualities that “culture war” type conversations seems to foster.
Justice Blackmun once mused, “easy cases make bad law.” O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 804 (1980) (Blackmun, J. concurring in judgment). I don’t think Kitzmiller is an example of “bad law,” for I agree with the conclusion and much of the analysis. But I do think that because the case was so easy, it did not prove to be a good vehicle to probe some of the more nuanced angles of the current debate about the relationship between science and religion.
For example, the court eloquently concludes its analysis:
Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.
I bet many of us agree wholeheartedly with that statement. Many interpretations of the theory of evolution do not conflict in any way with belief in God as creator. As theologian John Haught, who testified as an expert for the plaintiffs, explained in his book, Deeper than Darwin, there are different ways to “read” the text of creation—science is one kind of grammar, and philosophy and religion come at the text in different but complementary ways.
But because this case was “easy,” it didn’t really probe the contours of how the presentation of scientific theories might foster the harmony between scientific and religious perspectives, or at least make an effort not to denigrate religious perspectives.
While theories of evolution do not necessarily conflict with biblical accounts of creation, what was absent from the Kitzmiller narrative was any acknowledgement that scientists have, at times, overstepped their bounds, and presented as science what is actually philosophical reflection on the origins of life. For example, when biologist Richard Dawkins claimed in River Out of Eden, “The universe we observe has precisely the properties we should expect if there is, at bottom, no design, no purpose, no evil, and no good, nothing but blind, pitiless indifference,” he was certainly venturing into philosophy, far beyond the bounds of scientific method.
As John Haught warned, “the leap from ‘Darwin got it right’ to ‘Darwin tells the whole story’ has proven increasingly irresistible.”
When some parents express concerns about “scientific materialism,” I think they may be reacting not so much to having their kids exposed to scientific method, but to the extent to which some scientists have ventured into more philosophical reflections on the origins of life, and have claimed to “tell the whole story,” to the exclusion of religious narratives.
For example, at the end of the Dover statement, students were informed: “The school leaves the discussion of the Origins of Life to individual students and their families.” The Kitzmiller court was concerned that this was too similar to the Frieler case which rejected a similar statement as unconstitutional, because, among other reasons, it “‘reminds school children that they can rightly maintain beliefs taught by the parents on the subject of the origin of life,’ thereby stifling creative thinking that the class’s study of evolutionary theory might otherwise prompt, to protect a religious view from what the Board considers to be a threat.” (Kitzmiller at 44, citing Frieler at 345).
While this may reflect an understandable concern that students are at some point exposed to scienctific method, I think schools need to be careful not to insist that biology classes "tell the whole story," to the exclusion of religious narratives that children may learn from their parents. Our real challenge is to find ways to express respect and space for both. Futher thoughts? Amy
Tuesday, December 20, 2005
Richard John Neuhaus quotes a letter to the Wall Street Journal written by Baylor prof Michael Foley in response to a column criticizing the recent instruction on homosexuality and the priesthood. An excerpt from the letter:
In characterizing the Vatican’s instruction on homosexual candidates for the priesthood as “shoot first and ask questions later” (”Ungracious Instruction,” editorial page, Dec. 2), Kenneth Woodward paints a misleading picture of an important and fair-minded directive. We will never know how many ordained priests today have deep-seated homosexual tendencies, but we do know that 82% of the recent sexual abuse cases were not acts of pedophilia involving small children of both sexes but acts of homoerotic ephebophilia by priests attracted to teenage boys. Put simply, the clerical scandals were predominantly perpetrated by gay men, not clinical pedophiles. . . .
Moreover, Mr. Woodward fails to see that the priesthood requires more than “affective maturity.” It demands that the protective and procreative zeal that a man would have had toward his wife and children is transposed to his spiritual family, his parish. As early as the Council of Nicea (A.D. 325), which forbade the ordination of voluntary eunuchs, the church has very much relied on the spiritual exercise of its priests’ heterosexually oriented eros. For the priesthood is husbandry in the strict sense, not mere celibacy: it is spiritual fatherhood, not professional bachelorhood.
I've never heard the case for the instruction put in quite these terms; is it true that the Church has traditionally relied on priests' "heterosexually oriented eros?" I understand the focus on spiritual fatherhood, but I'd welcome additional explanation of the heterosexual dimension of the role.
Rob
The New Atlantis has an essay that uses Tom Wolfe's recent novel, I Am Charlotte Simmons, as an entryway into a stinging critique of American universities:
I Am Charlotte Simmons is an indictment of the primary centers of higher education in America today. These institutions do not well serve the real longings and earnest ambitions of the young people who flock to them, at great cost and with great expectations, year after year. Instead of pointing students to a world that is higher than where they came from, the university reinforces and expands the nihilism and political correctness that they are taught in public schools, imbibe from popular culture, and bring with them as routine common sense when they arrive on campus. Of course, these two ideologies are largely incompatible: nihilism celebrates strength (or apathy) without illusion; political correctness promulgates illusions in the name of sensitivity. But both ideologies are the result of collapsing and rejecting any distinction between higher and lower, between nobility and ignobility, between the higher learning and the flight from reason.
Rob
An interesting tid-bit from today's NYTimes article on Bush's campaign of domestic spying:
One F.B.I. document indicates that agents in Indianapolis planned to conduct surveillance as part of a "Vegan Community Project." Another document talks of the Catholic Workers group's "semi-communistic ideology." A third indicates the bureau's interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment
Monday, December 19, 2005
This news story reports that (to the surprise of few, I imagine) the U.S. Court of Appeals for the Third Circuit has reversed a district-court decision invalidating several federal obscenity laws, "saying that those laws violate the Constitution. [The trial judge] specifically cited a recent Supreme Court case, Lawrence v. Texas, in which the court ruled that laws prohibiting same-sex sodomy are unconstitutional. He ruled that the Lawrence decision undermined obscenity statutes, as well as earlier Supreme Court decisions that upheld them." (Here is a link to the Court of Appeals decision in Extreme Associates; here is the district-court opinion).
The trial judge had reasoned, in a nutshell, that "[a]fter Lawrence, the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts, as a legitimate, let alone compelling, state interest." He had also noted that "upholding the public sense of morality is not even a legitimate state interest that can justify infringing one’s liberty interest to engage in consensual sexual conduct in private[.]"
So . . . why (putting aside the whole "district-court judges should not announce the implicit overruling of Supreme Court decisions" thing) was the district-court judge in Extreme Associates wrong?
This semester (and last year), I gave my first-year Criminal Law students the option of writing (in addition to the final examination) a "critical review" of Jeffrie Murphy's "Getting Even: Forgiveness and Its Limits." (For those students who exercised this option, the critical review was "worth" about 1/3 of their final grade). I highly recommend the book. I've now read it three times, and continue to find it both enlightening and unsettling. (I'm also a big fan of Murphy's essay, "Law Like Love." This piece asks, "what would law -- particularly criminal law [and punishment theory] -- be like if we regarded love (agape) as the first virtue of social and legal institutions?") Here is a blurb from the SSRN abstract for "Getting Even":
This book - drawing from the resources of philosophy, law, psychology, religion, and literature - argues that vindictive emotions (anger, resentment, and the desire for revenge) deserve a more legitimate place in our moral, emotional, legal and even religious lives than we currently recognize and that forgiveness, though often a great virtue, deserves to be more cautiously and selectively granted.
And, here is a review, published a few years ago in First Things.
I cannot say with any confidence -- at least, not yet -- how my "critical review" option is perceived by my students, but I'd welcome reactions from Prawfsblawggers and readers. The idea, I guess, has been to provide students with a way -- if they want to -- to explore "punishment theory" questions in more depth than an essay question on a three-hour exam permits, and also to give those students who are (or who think they are, or who fear they might be) not-so-good at showing what they've learned on exams another, separate chance to do so. The option has resulted in considerably more pre-Christmas exam reading than I would otherwise have, but I think I'm happy with it.
