Jon Buell, the head of the Foundation for Thought and Ethics and publisher of the book Of Pandas and People (Pandas), has written a long essay criticizing Judge Jones’ ruling in the Dover case. That’s hardly a surprise, of course. The judge ruled against his position, how could he do anything but criticize it? Unfortunately for him, his criticisms don’t hold up under scrutiny because they are based on false claims, legal ignorance and, in at least one case, an outright lie. This may be a long one, so let’s get started. He begins by complaining that the judge refused their request to intervene in the case:
When I learned that even the firm defending the Dover School Board, the Thomas More Law Center, would not call Dr. Thaxton or me as witnesses (and not even return our calls), FTE’s attorney filed a motion to intervene with the Court late last May, 2005. One might expect that Judge Jones would have wanted to hear from the key eyewitnesses to the development of Pandas, the text on which the entire trial focused, in order to come to the truth about this pivotal issue in the case…
In his report “Dover In Review,” Discovery Institute Senior Fellow and Chairman of the Dept. of Government at Seattle Pacific University, Dr. John G. West, marvels at the Judge’s obstinance: “Frankly, it is astounding that Judge Jones treats Pandas as central to his decision given that he refused to grant the book’s publisher, the Foundation for Thought and Ethics, permission to intervene in the case in order to defend itself.”
Their marveling at the judge’s ruling only reveals their ignorance of the legal standards for intervention in a case. It simply isn’t true that they should have been granted the right to intervene in the case under the Federal Rule of Civil Procedure 24, which is the law governing that question. The FTE had every legal right to get their position submitted to the court through an amicus brief, but intervening in the case means that they would be named a defendant, along with the school board, and that can only happen in very particular circumstances. Timothy Sandefur, an experienced attorney who has been involved in many Federal civil trials, does an excellent job of explaining the legal standard for intervention and why the FTE’s motion did not meet that standard. He writes:
Because intervention adds a new party to a case, it complicates things enormously. Intervenors can appeal, they can settle, they can do all sorts of things that make a case much more difficult to manage. This is why the Dover School Board opposed the publishers’ motion to intervene as did the Plaintiffs. The Federal Rules give the right to intervene in spite of that kind of opposition only when the intervenor “claims an interest relating to the property or transaction which is the subject of the action” and which the “disposition of the action may as a practical matter impair.” Obviously this was not the case here, since the publishers of Pandas in no way stood to lose a property right, or anything like it, as a consequence of the case. They argued that they stood to lose potential profits if because “[a] ruling by this Court finding that intelligent design theory is religion would destroy [their] ability to market [their] textbooks within this district,” Motion to Intervene by FTE at 7, but this is not the sort of direct, tangible interest that warrants intervention as of right, particularly since private schools and private individuals are still free to purchase Pandas if they want, and because the publishers failed to provide any evidence to substantiate their claim of potential losses. Order Denying Motion to Intervene of FTE at 11. Judge Jones found that the publishers’ asserted interest in the outcome of the case was “an uncertain and purely economic one,” id. at 12, and that their “‘interests [were] of a general and indefinite character,'” id. at 12 (quoting Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987)). Thus the publishers had nothing to “defend,” and intervention was not warranted.
Moreover, Judge Jones found that the publishers waited five months before filing their motion–not what you’d expect of a group trying to “defend” themselves–and that they filed their motion only a month before discovery was set to close, meaning that to allow intervention would have required changing that deadline and possibly allowing a whole new round of depositions and other discovery. Id. at 8. And there was no reason to believe that the school board would not do just as good a job of defending ID as the publishers of Pandas. Id. at 15-19.
Judge Jones was right to deny the motion to intervene, and he was also right to grant the FTE amicus curiae status instead. Buell’s next complaint is just plain odd:
The Judge was also undaunted by the U.S. Supreme Court’s six tenets of Creation Science in Edwards (which description Justice Scallia called a “term of art,” meaning a term used by legal professionals that has a precise meaning in a particular subject area). To this codified description Judge Jones made nary a reference…
Precisely how the U.S. Supreme Court described Creation Science was as irrelevant in Judge Jones’ Court as was the testimony and cross examination of eye witnesses.
This appears to be little more than gibberish. There is no reference to “six tenets of Creation Science” in the Edwards ruling. The Supreme Court did not give a definition of creation science, nor would it be terribly relevant even if they did. There is a list of 6 tenets of creation science found in the McLean decision, a 1981 District Court ruling, but that list was not given by the court but taken from the Arkansas statute that was under review. But why this should have “daunted” Judge Jones, or even been worthy of mentioning in his ruling, is quite beyond me. This appears to be as meaningless an argument as if Buell had just randomly thrown words on a page.
This is not the only time in his essay that Buell refers to the 6 tenets of creation science that he, wrongly, thinks was a definition given by the Supreme Court. A few paragraphs later he says:
The complete absence of manuscripts or portions of manuscripts teaching the tenets of the six-part description of Creation Science is eloquent evidence that this and only this is why those two words are sprinkled throughout old drafts.
He’s really insistent that the 6 tenets of creation science used by the Arkansas legislature in Act 590, struck down in McLean is the one and only definition of creation science. He makes this argument so that he can say, “The Supreme Court says you have to have these 6 things in order to be creationism or creation science; Pandas doesn’t have all 6 things, therefore it’s not creationism or creation science.” But in addition to the fact that he is flat wrong that the Supreme Court mandated such a definition, there’s another big problem with this argument: the author of Pandas says otherwise. Here is the definition from the Arkansas act, cited in McLean:
“Creation-science” means the scientific evidences for creation and inferences from those scientific evidences. Creation-science includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth’s geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds.
And here is the definition offered by Dean Kenyon, the principal author of Pandas, in an affidavit he filed with the Supreme Court in Edwards:
Creation-science means origin through abrupt appearance in complex form, and includes biological creation, biochemical creation (or chemical creation), and cosmic creation. Evolution-science is equivalent to evolution. Evolution is generally understood by scientists (although some would disagree) to include biological evolution (or organic evolution) from simple life to all plants and animals, biochemical evolution (or chemical evolution or prebiotic evolution of the first life), and cosmic evolution (including stellar evolution) (of the universe). Creation-science does not include as essential parts the concepts of catastrophism, a world-wide flood, a recent inception of the earth or life, from nothingness (ex nihilo), the concept of kinds, or any concepts from Genesis or other religious texts.
Isn’t that interesting? While Buell demands that the Arkansas statute’s definition of creation science be used as the sole definition – which allows him to say that anything that does not include those tenets can’t be creation science and therefore isn’t religious – the author of Buell’s textbook says that none of those specific claims are a part of creation science at all, which means that it doesn’t have to contain those elements at all in order to be considered creationism for legal purposes. Which brings us to….the big lie.
Was there a systematic replacement in Pandas manuscripts of the words “creationism,” “creationist,” and “creation” with the term “intelligent design,” as alleged?
Let’s look at the three terms one at a time. Neither “Creationism” nor its synonym, “Creation Science” was ever used in any Pandas manuscript, as alleged.
This, ladies and gentlemen, is a baldfaced lie. Included in the earlier manuscripts of Pandas that the FTE turned over to the plaintiffs’ attorneys in the case, and entered into evidence during the trial, was an early manuscript titled Creation Biology from 1983 (this was entered into evidence in the trial, as P-563 Creation Biology Textbook Supplement [FTE006517 - FTE006742]). I’m going to quote numerous instances of these terms being used in that manuscript. From Chapter 3, pp. 10-11:
Evolution can at least explain these things, it might be urged, but the only explanation advancable by creationism poses more questions than it answers. But unanswered questions are an essential part of science; they define the areas of needed research. Reopened questions often expose time-hallowed but spurious answers that have impeded the progress of science, in some cases, for generations because no one imagined that they needed to be revealuated. [sic] Creationists have an obligation to advance possible explanations of such things as marsupial bones. And It is worthwhile noting (as we shall see later in this chapter) that evolution does not have all the answers about marsupial bones and the like; why should creationism be criticised because it cannot as yet answer questions that evolution has never satisfactorally addressed?
There the word “creationism” appears three times in a single paragraph. From p 3-29:
One obvious objection to this concept (which is actually an objection to creationism in general) is that adaptations are not perfect.
From pp. 6-1, 6-2:
Not that the ancient world, and the modern for that matter lacked for supernatural creation stories. One of the criticisms advanced against creationism embodies this very point: Which
creation story shall we consider to be the true one? Yet it seems to us that if creation by an intelligent entity is taken to be the Kernel of creationism, then the most fundamental postulate of creationism must be that species were originally created as species, which immediately raises the questions of just which ones, how many of them, and when?
From p. 6-12:
What of the creationist? If creation is true, it would be possible (though this is not demanded by the concept of creation) that there are limits to the amount of variation that natural
selection and other evolutionary mechanisms can produce. If such limits exist, creationism should establish that, and then find out what they are. Moreover, if creation is true, there may very well be species on the face of the earth that have undergone no substantial change since the day in which they were created. Is there any way of identifying such species if they exist? Creation research should address this problem. Finally, if creation is true it should be possible to mentally and perhaps even genetically reconstruct the originally created species. Here are questions enough to show that creationism is at least as open to research as evolutionary theory purports to be.
This is very important: notice that in the paragraph above, creationism is used as a form of “creation”. That clearly disproves his contention that “creation” and “creationism” have distinct meanings. Buell claims:
Although they differ by only one letter, “creationist,” is not a variant of “creationism;” it is a variant of “creation,” a modifier that means “of the viewpoint of creation.”
So he is arguing that a “creationist” is merely someone who believes in “creation”, not in “creationism“, and “creation” is perfectly acceptable while “creationism” is what was rejected in Edwards. That would be a silly enough argument on its own, but it’s a whole lot sillier – not to mention dishonest – when you see that his own early manuscript purports to show that “creationism” is a valid scientific theory. At this point, I think Mr. Buell should consider himself fortunate that he was not allowed to intervene in the case. If he had, and he had told this same lie on the witness stand, he might well have found himself in the same position that Alan Bonsell and William Buckingham found themselves – sitting in the witness stand as the judge stared at them and asked them why they were lying in his courtroom.
But then, bizarrely, Buell goes on to admit that they changed “creation” to “intelligent design” on purpose in response to the Edwards ruling!
Did we go through the manuscript and change the word “creation” to “intelligent design,” “intelligent agent,” etc. after Edwards? We certainly did! Why? For clarity sake. First, because by codifying “Creationism” and “Creation Science” with highly specialized meanings, the High Court had cast some suspicion on the word “creation.” Who would expect the public to understand the differences? It was a practical and important matter of good communication.
Now, we’ve already established that he was wrong that such a definition appears in Edwards and that, when it does appear in McLean (not a Supreme Court ruling, incidentally) it is only as a reference to the way the Arkansas legislature defined it in Act 590. More importantly, Buell doesn’t address the fact that the earlier and later manuscripts of Pandas used the exact same definition for “creation” and “intelligent design” that Kenyon uses in an affidavit defending the term “creation science” in Edwards. In Biology and Creation (1986), one of the earlier manuscripts of Pandas turned over by the FTE, they give the following definition:
“Creation means that the various forms of life began abruptly through the agency of an intelligent creator with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, and wings, etc.”
And in the final published version of Pandas, they gave the following definition:
“Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, and wings, etc.”
Almost word for word the same definition of “creation” as for “intelligent design”. More importantly – and this is where this artificial distinction that Buell is attempting to make completely breaks down – the definitions for both are substantively identical to Kenyon’s definition of “creation science” – “Creation-science means origin through abrupt appearance in complex form”. How much more clear could it possibly be made that “creation”, “creation science”, “creationism” and “intelligent design” have essentially identical meanings? It’s right there in black and white, from their own words, and found in the very book that ID advocates hail as the first intelligent design textbook. Game, set, match.
But of course, Buell is not done making bad arguments. Take a look at this one:
More importantly, this change in terminology reflected a more precise understanding of causation as worked out and formalized by the empirical philosopher David Hume. According to Hume, analogical reasoning allows us to comprehend the causes of past effects, even though we cannot observe them, by comparing them with repeated, presently observable examples of cause-effect (like effects have like causes, past and present). This understanding of causation has become critically important in the historical sciences. Hume applied this primarily to natural causes, but he regarded it to be true, as well, for intelligent causes. Hence the crying need for a new term.
Now that just has to make you chuckle. He is justifying the change in terminology from “creation” and “creationism” to “intelligent design” by arguing that the findings of David Hume demands the latter term. One would think, then, that Hume’s work must have been done between the time they used the earlier terms and the time they used the latter term. Just one problem: Hume died the same year the Declaration of Independence was written. Buell does live in Texas, of course, and maybe word travels a bit more slowly down there, but it still strains credulity a bit to think that he only discovered Hume in mid-1987.
In short, Buell’s arguments take two forms: the dishonest and the downright silly.