Dubious Legal Analysis From the Discovery Institute

This one requires some set-up.

Eric Hedin is an assistant professor of physics at Ball State University. Last year, he was accused of teaching intelligent design, and of making disparaging remarks about non-Christian religions, in a science seminar that he was teaching. Some students complained, and the situation came to the attention of Jerry Coyne. Jerry made a big fuss about it at his blog and wrote letters to Ball State. Eventually the university forced Hedin to stop doing what he was doing, and they issued a strong statement that intelligent design was religion and therefore had no place in science classes. You can read the statement here

In other words, there was a happy ending.

Jerry's view was that Hedin's activities constituted a state endorsement of religion, but I am skeptical. Public universities are not the same as public elementary, middle and high schools, so it is not clear that the case law on teaching creationism in pre-college schools applies directly to universities. I'm not aware of any cases where this question has been litigated. That said, there are several cases where a professor was teaching something objectionable, the university told him to knock it off, and the professor then sued on the grounds that in some way his rights had been violated. In all of the cases of which I am aware, the finding was that the university was well within its rights to behave as it did.

This all happened last year. The Discovery Institute, which, for anyone who is new around here, is the primary advocacy group pushing intelligent design, was not amused. They have written some angry letters, and some Republican (of course) legislators in the state are now trying to make trouble for Ball State. This was all reported in this article from the Muncie Star Press. In the article, Discovery Institute Vice-President John West is quoted as follows:

“Ball State ought to be careful,” West said. “I think their mishandling of this could turn into a much bigger deal. Certainly, we are not going away. The speech code against intelligent design is vague and too broad and may not be being applied evenhandedly. We determined through public documents one science class is covering intelligent design in order to bash it. If they allow that, it's tantamount to state endorsement of an anti-religious view.”

There is obviously a lot to criticize in that little missive, but it's really the last line we are interested in today. Jerry Coyne points out what is so revealing about West's statement:

As those readers pointed out, this is an explicit admission by the Discovery Institute that Intelligent Design (ID) is a religious point of view, for “bashing it” is “tantamount” to being “anti-religious.” That’s an admission that they've avoided making, as they claim that ID is not religion, but pure science.

Quite right, and it's a contradiction that many ID critics have noted. On the one hand, the Discovery Institute swears up and down that ID is just science, and gets very cross with anyone who suggests otherwise. But anyone who criticizes ID is immediately accused of being anti-religion. Of course, the reality is not hard to discern. ID is a set of very poor scientific arguments that are promoted relentlessly because they are seen as a vehicle for bringing religion into science classes.

End of set-up. The real subject for today is this post, by Discovery Institute blogger Joshua Youngkin. His goal is to explain why West's statement, which is obviously an admission that ID is all about religion, is actually no such thing. Youngkin writes:

Is Coyne right? Is this an admission from Discovery Institute that intelligent design is religion? No, it is not. Why not? Because, in short, the case law on the establishment clause of the First Amendment (which covers the area of life we're talking about now) generally looks to the state actor's (e.g., BSU administration) motive and purpose for acting as they act.

So, for example, if BSU administrators want to offer a course bashing intelligent design because they believe it is religion, and because they are hostile to religion, then that motivation when put into effect might constitute to a reasonable observer (e.g., a hypothetical student in the class, as determined by a court) state endorsement of anti-religion, which in turn arguably constitutes a violation of the establishment clause of the First Amendment.

That is, the law that governs this area of life cares about what's going on inside the minds of state employees when they do what they do. In this case, it does not care whether intelligent design really is religion, as Coyne seems to think. It, again, only cares what state employees think it is, particularly when that thinking is part of state employees' motive or purpose for, say, promoting or bashing religion on state property using state resources.

This, sadly, is not correct. The motivation behind a state action is not relevant at all to determining its constitutionality, at least not directly. You cannot go into court and argue that a state action is unconstitutional because it was motivated by anti-religious fervor. (Not if you expect to win, at any rate.) A state action can have both a religious (or anti-religious) intent and also a religious (or anti-religious) effect and still be constitutional.

The current legal standard for adjudicating these claims is the so-called Lemon test, from the 1971 Supreme Court case Lemon v. Kurtzman. The test has three prongs, the first of which is most relevant for assessing Youngkin's claim. This prong says that to be constitutional, the state action must have a secular legislative purpose. Of course, you can always just make up a secular purpose to obscure the religious intent of the action. So, subsequent case law has established the principle that the given secular purpose must be legitimate, and not just a sham.

This is the place where the motivation behind the action might have some indirect relevance to determining its constitutionality. Evidence that the action was motivated by religious concerns might also constitute evidence that the publicly-given secular purpose is just a sham. Even in that case, however, the action's unconstitutionality has nothing to do with its motivation, but is instead the result of its not having a legitimate secular purpose.

This is precisely what played out in the Dover trial in 2005. The school board in that case had mandated that a statement supportive of intelligent design be presented to high school science students. The secular purpose of this action was, according to the board, to present their students with the best, modern scientific information. On its face, that's a legitimate purpose. At trial, the plaintiffs presented scientific testimony to show that ID was appalling as science and historical testimony to show that the origins of ID were all about the legal defeats suffered by its predecessor, creationism. But they also presented evidence about the internal deliberations of the board, showing that their concerns were overwhelmingly religious in nature, and had little to do with presenting the best science to students. The totality of this evidence convinced the judge that the board's stated secular purpose was just a sham and that really there was no legitimate secular purpose behind the board's action.

With that in mind, let's revisit Youngkin's hypothetical. Imagine a shadowy cabal of university administrators who decide they want to use their science classes as a tool for bashing religion. Towards that end, they decide that they are going to offer a course that really goes to town on intelligent design. As long as what actually plays out in class is a calm, measured, discussion in which the professor says something like, “Proponents of intelligent design make certain scientific arguments. These arguments are worth addressing because they are so prevalent, but they are poor for the following reasons...” then the course would not be unconstitutional. In this case, the secular purpose of presenting the best science is plainly not a sham, rendering irrelevant any concerns about the motivations behind the course.

Incidentally, the second prong of the Lemon test says that the primary effect of the state action cannot be to advance or hinder religion. Secondary effects are, once more, irrelevant. So even if the administrators specifically wanted to bash religion, and even if the course had the secondary effect of making some students question their faith, that still would not be enough to show that it is unconstitutional. That there is a legitimate secular purpose behind the course (to present the best science) and that the primary effect has noting to do with religion (that effect being to leave students properly informed about the state of science), renders all other concerns moot. (Leaving aside the third prong of the Lemon test, for the purposes of this discussion.)

Obviously, the ID folks would not agree with my opinions about what is, and is not, a sham, but that is irrelevant. Applying abstract legal tests to specific cases is always going to be a judgment call, which, indeed, is why we have judges in the first place.

Youngkin goes on to provide a statement from West himself, clarifying the intent of his quote in the article:

Although the reporter generally quoted me accurately in the article, in this particular instance he left out some important context. I made clear that I was focusing on BSU's claim that intelligent design is religion. My argument was that if this is BSU's claim, then BSU has to be consistent in how it applies its view when it comes to regulating speech of its faculty. If, according to BSU, endorsing intelligent design is tantamount to endorsing religion, then according to BSU's own standard, attacking intelligent design would be tantamount to attacking religion. My point is that BSU can't have it both ways.

In making this argument, West can avoid the charge that he was carelessly admitting that intelligent design was religion. It is, however, a ridiculous argument. If the Discovery Institute wants to sue Ball State for offering a course critical of ID, then they would have to explain to a judge why the purpose or primary intent of the course was anti-religious. Given the many adamant statements by ID's leading defenders that it is all about science and has nothing to do with religion, they might find that a tough case to make. That BSU's administrators were hypothetically motivated by anti-religious fervor would be neither here nor there.

Furthermore, you can have it both ways. No one is denying that ID folks make scientific assertions. Refuting those assertions plainly has nothing to do with religion, and is clearly a legitimate purpose in a science class. Claiming that ID is religion is just shorthand for saying that it's scientific arguments are so bad that it is reasonable to look at the motivations behind the people making them, and one does not have to look too hard to see that those motivations are entirely religious and political).

As far as I can tell, Ball State didn't "bash" ID. They just asked that it not be presented in class. If bashing ID is not allowed as being anti-religious, then surely presenting ID should not be allowed, as advancing religion. The only correct posture is to remove ID from science classes entirely - no mention at all. Just what it deserves.

The principles here are very hard to adjudicate. The primary difference is college versus high school. They have very different purposes in society. The case outlined by Jason is to treat college and high school as nearly the same. That is, the issue is whether state or federal law should cover college instructing (note: not teaching).

We each have an opinion about ID. But college is an environment where differing views should, at least, be subject to examination. High school trains people to function in the word-a-day world of the local environment.

Ok. Its abstract. Another case may be the instructing of the Steady State model of the universe or its successor, QSS or cyclic (eternal universe models). Is it religion to think of a universe without a beginning (Hindu)? Is it religion to think of a universe with a beginning? After all, the Big Bang model grew out of the religious ideas of devout Christians. If the Big Bang is to be instructed, the beginning of the universe is instructed. But none have found a way to test or observe the beginning let alone to test how long ago it was. So, is instructing the Big Bang a religion. I think it is. Should we not instruct the creating of the universe by the Big Bang or cyclic universe models? College is all about thinking and evaluating alternatives.

ID has made no scientific argument at all. It asserts that evolution could not have happened by chance, yet puts absolutely no numbers to that claim. And it makes not one testable prediction. Apparently those who came up with the idea are too lazy or too incompetent to follow through with the idea and translate it into a substantial conjecture.

"After all, the Big Bang model grew out of the religious ideas of devout Christians"

Althoug the originator of the big bang theory was in fact a Roman Catholic priest ( Georges Lemaître ), he admonished Pope Pius XII to stop talking about the big bang as a validation of Catholicism or creationism. He convinced the pope to stop talking about cosmology and was against the mixing of science and religion.

If you examine how Lemaître arrived at the theory, you'll find that it had nothing to do with his beliefs as a Christian.He was the first person to propose that the universe was expanding and it was a simple extrapolation from that to the conclusion the universe began as a singularity ( http://en.wikipedia.org/wiki/Georges_Lema%C3%AEtre )

ID has been falsified and is now pseudo-science. There are only two opinions about it. The correct one and the incorrect one.

"After all, the Big Bang model grew out of the religious ideas of devout Christians. "

No, the Big Bang model grew out of mathematical analysis of Einstein's equations of general relativity, combined with observations of the redshifts of distant galaxies. Some of that work was conducted by devout christians, but their christian ideas had nothing to do with it.

"But none have found a way to test or observe the beginning let alone to test how long ago it was. So, is instructing the Big Bang a religion. I think it is."

The big bang theory is supported by a lot of observations that cannot be explained with any other approach. The pattern of red shifts of galaxies, the relative abundance of light elements, the thermal blackbody spectrum of the cosmic microwave background, and so on. The religious ideas you put forward are supported by nothing. Science classes should only teach science.

And Ball State university location is where?

It has always seemed to me that whoever wrote the primary syllabus for this course (and the one with which it was cross-listed, a general topics astronomy course if I remember correctly) knew that what they were putting together was a science course in name only. From the course objectives:

The objectives are to give a scientifically accurate introduction to the origin and development of the
physical universe (cosmology) which has led up to the formation of Earth as a uniquely suitable
environment to support life. The complexity of physical life (on the molecular level) and the mystery of
human consciousness will also be briefly examined. These and other topics provide examples of features
of our existence which may lie outside the naturalistic boundaries of science. These will then be
considered for their implications relating to the significance and value of human life, and as possible
indications of the nature and existence of God.

(emphasis mine).

Later "theistic evolution, probability and time frames, miracles and spirituality" are all given as topics, as is

Beauty, complex specified information, and intelligent design: what the universe communicates
about God

The course bibliography alone raises suspicions and strongly indicates this was never meant to be a science class. The syllabus can be seen here:


At our institution when a new class is proposed its design and content has to go through review committees as a check that what is claimed to be included is included. If I were to design a class in statistics but include nothing but numerology it would go nowhere. Was there no such review for this course at Ball State?

has it partly correct. Friedman, a Russian orthodox Christian, wrote in non-science papers that he intended to interpret the first words of the bible literally and leave out the God part. In English “In the beginning” (means there was a beginning and is expanding) and leave out “God created”. Lameitre got the beginning and expansion from belief.

How was ID falsified? There are competing models that have predicted observations. But falsified? As far as I know, ID says nothing about current observations other than what has been observed (the anthropic principle). Instruct me.

has it incorrect. QSS and cyclic universe models also use general relativity. The idea that galactic redshift of light is because of universe expansion is very much a Big Bang idea. Other models of light redshift have been proposed. General relativity is a model to calculate gravity forces under many universe models.

For example, every prediction and observation the special theory (a base of General relativity) can also be described by Lorentz Ether theory (LET). In addition LET allows a varying speed of light – light travels at the maximum speed of matter, but it need not be constant. The Shapiro delay and other similar observation (under time delay models of General Relativity) would be better described under LET I think. The cosmic background radiation is better described as “microwave background” rather than “cosmic”. The latter is a model of the source near the beginning.

No religious idea is supported by science by definition. If science describes an observation, it is not religion. What are you saying?

Science in college must treat some aspects of religion because of the many competing models. Science is a part of religion, religion is a part of science research.


I think you are confusing theory formation with confirmation. Some refer to the distinction as the context of discovery vs the context of confirmation. It is largely irrelevant where an idea comes from. The point is whether it stands up to testing and is consistent with what we know of the world ( Quine ).
When August Kekule was trying to work out the shape of the benzene molecule, he had a dream about a ouroboros. Eureka - the benzene molecule is circular. However, this had to be confirmed empirically. Christians can have all the theories they want, but they have to pass the same tests as everyone elses. Because a theory is motivated by a story from the bible says absolutely nothing about the truth or veracity of those stories.

religion is a part of science research.

Surely you jest.

... a shadowy cabal of university administrators ...

Unless a better collective term for that group already exists, I propose that this become standard usage.

By Pierce R. Butler (not verified) on 16 Mar 2014 #permalink

Excellent takedown, Jason. Seems to me that West's initial statement was a Freudian slip, and the "explanations" that followed were classic "clarifications": Oceania is at war with East Asia; Oceania has _always_ been at war against East Asia.

For our part, we should be careful that professors who criticize ID in class do it as you suggested: the scientific arguements for ID are poor, full stop. Don't engage a religion debate in class, lest it come in for a lawsuit for religious discrimination. The furthest anyone should go is to say something along the lines of, "ID is essentially a matter of faith. Everyone has the right to their own beliefs about religious issues, but those issues are not the subject matter of this class."


The big bang cosmology is supported not only by the expansion of the universe (ie the red shift), but also by the existence and the actual spectrum of the cosmological microwave background radiation as well as by the abundances of the light elements. No other model can explain ALL of these observations as accurately as the BB model, which is why the BB is the accepted model. Future observations could change that, but for now the BB model is the best explanation for what we observe.

@2 John: "But college is an environment where differing views should, at least, be subject to examination."
Ah, now I know why a legal issue draws so much attention.
Be comforted. Creationism has been subject to examination. Only recently by this guy:


"In 2005 Dekker got involved in discussions around Intelligent Design in the Netherlands, a movement that he has since clearly distanced himself from."
Of course The Netherlands are not the USA. But we Dutch prefer to keep rejected views out of the educational curriculum. Apparently a lot of Americans do as well.

"After all, the Big Bang model grew out of the religious ideas of devout Christians."
Before all a Soviet-commie did the relevant work:


So christianity isn't exactly relevant for the various Big Bang models.

@8: "Friedman, a Russian orthodox Christian, wrote in non-science papers that he intended to interpret the first words of the bible literally and leave out the God part."
He was baptized, but didn't practice his belief. How do you think he got his jobs in Perm and Leningrad during communism?

"They had a religious wedding ceremony, though both were far from religious."

What's more, "published by the German physics journal",
Zeitschrift für Physik wasn't exactly a "non-science paper".


You nicely provide one important reason to keep ID out of universities - IDers way too often get their facts wrong.

" Public universities are not the same as public elementary, middle and high schools.... "

Do you mean in practice regarding the Establishment Clause, or in principle? If the latter, please explain why.

By Matt Cavanaugh (not verified) on 17 Mar 2014 #permalink

Re John

For example, every prediction and observation the special theory (a base of General relativity) can also be described by Lorentz Ether theory (LET). In addition LET allows a varying speed of light – light travels at the maximum speed of matter, but it need not be constant.

Conventional special relativity combined with quantum mechanics in quantum electrodynamics predicts the value of the anomalous magnetic moment of the electron which agrees with experimental observation to 10 significant digits Unless or until someone can come up with an alternate theory that does as well, I'll stick with SR.

By colnago80 (not verified) on 17 Mar 2014 #permalink

Matt Cavanaugh--

I meant the latter, but that has relevance for the former. In principle they are different because no one is forced to attend a public university, whereas people are effectively forced to attend public schools. (There are other educational options than the public schools, but for most parents they are impractical.) Also, university students are legal adults. How these differences (and others I'm sure we could come up with) ought to affect the application of the Establishment Clause to public universities is unclear, which is the point I was making at the start of the post.


Your analysis sounds both clear and correct.

In my reading, the "scientists" at the Discovery Institute are mostly crackpots (in the 'technical' meaning of the word), advocating positions that are incoherent, irrational, and/or wrong.

Case in point, Granville Sewell has been publishing occasional papers and more frequent blog posts (at EVN) that claim that evolution violates the second law of thermodynamics. I remember that you wrote a devastating criticism of his claims some time ago. As a physicist who knows a little thermo, I think you were too kind; he is just so dead wrong, at so many points, that I would hesitate to list and explain them all. What makes him a crackpot is that he ought to know that an examination of his claims will expose him as a fraud, even to nonscientists with a little commonsense.

I wonder if Eric Hedin has actually read any of Sewell's papers? He should know enough physics to recognize how irrational they are. Maybe it would make him think twice about hooking up with the Discovery Institute.

Which brings up another question, has Hedin ever attempted to defend his course or Intelligent Design to his colleagues or the public? That would be interesting.

By Warren Johnson (not verified) on 17 Mar 2014 #permalink

"How was ID falsified?"

Instruct me, John, how can ID be falsified? Is there anything as pithy as the rabbit in the Precambrian?

By Walt Jones (not verified) on 17 Mar 2014 #permalink

Walt Jones.
I don’t know. Further, I think it cannot be falsified.

But another claimed it was falsified. This claim triggered my question.

By John (not verified) on 18 Mar 2014 #permalink

In reply to by Walt Jones (not verified)

"Some students complained, and the situation came to the attention of Jerry Coyne."
LOL! That is not what happened. An employee of the University contacted atheist activist and rabid discovery institute foe, Jerry Coyne. I mean if you have the names of the students....please.
But that contradicts the local news. If you are having to repackage the story to make it more of an outrage...chances are...there is more than facts being presented. Yeah...
The only dogma worse that creationism is atheism.

According to the Discovery Institute: "The theory of intelligent design holds that certain features of the universe and of living things are best explained by an intelligent cause, not an undirected process such as natural selection."

Notice that this 'theory' is distinctly short of details—specifically, the kind of details that would make it possible to tell whether or not it's true. This is why I like to condense ID down to a seven-word summary:

Somehow, somewhere, somewhen, somebody intelligent did something.

You disagree with my seven-word summary of ID? Fine. What's wrong with it? What aspects of ID have I left out?

Generally speaking, ID is so damned vague that it's not even possible to falsify it. But at the same time, ID-pushers have managed to come up with concepts that have a sufficient degree of coherence that they can be tested—i.e., Behe's "irreducible complexity", and Dembski's "Explanatory Filter"—and these ideas have been tested.

It just so happens that each and every such testable ID-concept has… um… failed its tests. The Explanatory Filter must necessarily yield a result of "it's Designed" whenever an investigator applies it to a non-Design phenomenon whose non-Design explanation is not known to that investigator; "irreducible complexity" is only an obstacle to stepwise evolutionary processes whose final step is "add a new part to the system".

So, to repeat: ID-in-general is so damned vague that it can't be falsified. In addition, there are occasional facets of ID 'theory' which are not as untestably vague as ID-in-general, which have been tested, and have been thereby falsified.


FWIW, I think you are right; ID is not falsifiable. I think maybe what the person who claimed it's been falsified really meant was that the arguements commonly set forth by ID proponents as to why evolution cannot be true have been falsified. For example, ID proponents often claim that an irreducibly complex system cannot arise via an evolutionary process. This claim is false; an IC system can result from an evolutionary loss of a redundant component. Without such arguments, it's hard to see why ID should be taken seriously, so it's easy to see why one would say that it's falsified, even though that isn't really the case.

"The only dogma worse that creationism is atheism."

Yawn, right, a dogma with no principles and no authorities. You keep using that word...

By Science Avenger (not verified) on 19 Mar 2014 #permalink

Did somebody order a strawman with a side of tu quoque?

By Walt Jones (not verified) on 19 Mar 2014 #permalink

Pedanticism incarnate. I guess I should have said "widely adhered to principles with penalties for violating them the way actual religions do", but then I made the mistake of assuming an honest interlocutor who would understand I didn't mean "No atheist anywhere says anything about principles."

"Scientism" is just another dishonest term invented as a rhetorical ploy to try to win arguments on the cheap, just like "evolutionist". When you have to redefine common terms and invent your on to win an argument, you've lost.

By Science Avenger (not verified) on 20 Mar 2014 #permalink