Get Your Transcript Fix

We’re happy to report we have the transcript of the Barbara Forrest’s testimony from the morning of Oct. 5. It can be found with the rest of the transcripts from the trial. Transcripts from her cross-examination should be up soon.

For those unfamiliar with the case, Dr. Forrest is an expert on the intelligent design movement and its attempts to get ID taught in schools.

For a more light-hearted look at Barbara Forrest’s testimony and cross-examination, see Mike Agento’s column from today’s York Daily Record.

6 thoughts on “Get Your Transcript Fix

  1. I’m curious as to whether or not you’ve had any assistance in this case from Pedro Irigonegaray. I was very impressed by his cross-examinations from the Kansas hearings.

    Keep up the good work.

  2. I can’t wait for you to post the transcript of the cross of Dr. Forrest. I’ve read all the transcripts you’ve posted and I’m absolutely revited. Keep up the great work.

  3. This essay discusses a hypothetical question inspired by the Kitzmiller v. Dover Area School Board (DASB) case going on right now in Harrisburg, PA. The evidence produced so far, after two weeks of testimony, indicates that Intelligent Design (ID) is a very thinly disguised form of creationism, a religious belief with little or no scientific merit. If that trend holds up, that would raise the question of whether it would still be constitutionally permissible to teach ID as a scientific alternative to evolution in public high school science classes. There are millions of religious extremists who would answer unhesitatingly in the affirmative. This essay explains why those extremists are wrong.

    While my hypothetical simply assumes the truth of the stated premises, those premises appear to be solidly established by documents and sworn testimony from the Kitzmiller case. On the issue of ID being a thinly disguised form of religion, descended with very little modification from its young-earth creationist (YEC) ancestors, see John Haught’s trial testimony, Barbara Forrest’s lengthy testimony, or her condensed, pre-trial witness statement, all available at Those citations show that in the transition from YEC to ID, there has been some loss of information, but losing information qualifies as horizontal micro-evolution, not vertical macro-evolution; thus, YEC and ID are of the same religious “kind.”

    On the issue of there being little or no scientific merit in ID in general or in the ID textbook “Of Pandas and People” in particular, see Ken Miller’s sworn testimony or his much shorter, pre-trial witness statement at Or, see Frank Sonleitner’s book-length critique of Pandas (There is an overview chapter, if you don’t want to read the whole thing, but the revised Chapter Six is very significant — it deals with Behe’s contribution to Pandas — and should be read separately.), and several much shorter critiques by other scientists, all in the Pandas Resources section at The thinness of ID’s science is particularly revealed by Behe’s failure to promote his theory at professional conferences, despite open invitations, the failure of Dembski to promote his theory in professional science journals, and the failure of anyone connected to ID to formulate a positive, testable hypothesis that has actually produced any significant results.

    While you may think the above citations are biased, being from the evolution side, the pervasive religious motives and virtually non-existent scientific foundation for ID are also revealed in the recent Kansas Board of Education hearings, a summary of which is at Only ID supporters testified at those hearings, so the bias claim doesn’t work there.

    So, with that background, let’s begin. What constitutional rules are relevant to my hypothetical case, and how should they be applied?

    The rules change from time to time. Here’s a very brief review of the current set of relevant rules. The First Amendment’s Establishment Clause (EC) prohibits governmental promotion of religion. In cases involving the EC, like my hypothetical, the Supreme Court (SC) uses the three-pronged test that it established in Lemon v. Kurtzman. Lemon is 34 years old, so it is well established and was used in the most recent evolution case, Selman v. Cobb County. Lemon basically says that to survive scrutiny under the EC, governmental action must pass three tests: it must have some legitimate, secular purpose; it’s primary effect must also be secular; and it must not result in excessive government entanglement with religion. It must pass all three tests. Fail a single test, and the law, regulation, or other action is unconstitutional.

    The first test is so easy, it’s usually not much of a hurdle. Government officials can simply make up a purpose, and as long as it isn’t too obvious that they’re lying or stupid, the courts usually go along. For example, in Kitzmiller, the DASB engaged in vehement, protracted, religious arguments to justify the ID policy, but if even one board member says he voted for the policy to improve critical thinking skills, it’s likely that the court will accept that and rule that rampant Christian bigotry may have been the board’s primary motive, but not its sole motive, and that’s probably enough to satisfy Lemon’s first test.

    However, governmental actions have to satisfy all three Lemon tests, and since my essay takes it as given that ID is primarily a religious theory with little or no scientific value, that means that the court will almost certainly rule that teaching ID will have a primary effect of promoting religion, and the DASB action will be struck down. Having failed the second test, there’s no need to consider the third.

    Now, as I said before, even taking my premises as given, there are millions of religious extremists who would still argue that, even under those circumstances, the EC simply does not bar teaching ID as a theory. Here are ten of their most common arguments, and my responses. Since ID advocates simply repeat their tired objections over and over and over again, I’ve numbered the arguments here. That way, instead of having to respond de novo every time they repeat the same argument, all you have to do is say something like: “Your argument is wrong, as previously explained in Zorro’s essay, section number ___”

    I. Creationists argue that the First Amendment and its EC apply only to Congress, not to the states. Wrong. The SC has repeatedly held since the 1940s that the First Amendment is binding on the states via the Fourteenth Amendment. It’s pretty much pointless to keep arguing about a precedent in place for that long.

    II. Creationists applying the same primitive, literalist approach to the Constitution that they use with the Bible, argue that in their personal, literalist interpretation, there’s no such thing as “separation of church and state.” Some folks on the DASB actually advocated exactly that primitive argument. Some creationists go a bit further than literalism and present lists of quotations and historical events allegedly supporting their argument. Either way, it’s not persuasive. Regardless of how carefully they scrutinize each syllable and comma in the Constitution, and regardless of how many quotations and historical events they come up with, the fact remains that their interpretation is their personal opinion, and their personal opinion has no legal effect. Under Article III of the Constitution, there is only one opinion that has any legal effect, and that is the SC’s opinion. In general, under the Constitution, whatever the SC says is in fact the law.

    Many creationists use primitive literalism in a variety of situations, such as arguing that the First Amendment doesn’t apply to the states (see Argument I, above), that the income tax is unconstitutional, that drug laws are unconstitutional, etc. Primitive literalists are understandably adamant that words and contracts do not change meaning, even though there is a well established body of law regarding how the interpretation of contract language can change over time, so another very common creationist argument is that the Constitution is rigid and does not evolve. Creationists cite Justice Scalia, one of the most frequently overruled justices in history, with a record far worse than the Ninth Circuit’s, in support of that argument. Well, with all due respect to Justice Scalia, even his opinion doesn’t count for much, unless it is supported by four more justices. So far, that hasn’t happened very frequently, at least on this issue. Substituting personal opinion, even the personal opinion of Justice Scalia, for well established precedent is simply irrational in view of Article III.

    The “separation” precedent is pretty well established. The SC first announced the “separation” view of the First Amendment in 1872 (Watson v. Jones) and has repeatedly endorsed it ever since. It’s pretty pointless to keep arguing about a precedent that’s been in place for that long, but, as flat-Earthers and geocentrists have demonstrated, Bible-thumpers are not exactly famous for giving up on pointless arguments.

    Finally, creationists often whine and cry about the SC’s “unchecked power.” Baloney. The citizens of the U.S. can overturn any SC decision they don’t like simply by passing a new amendment. In fact, in many cases, it doesn’t even take a new amendment. There have been numerous cases where Congress has essentially nullified SC decisions simply by passing new legislation. For example, in McCarty v. McCarty, a case involving federal pensions, the SC held that state courts could not divide such pensions in divorce cases. The U.S. Congress responded by passing legislation that authorized states to divide the pensions pursuant to divorce, thus completely nullifying the SC’s ruling. Creationists who whine and cry about the SC’s “unchecked power” are as ignorant about the Constitution as they are about biology.

    III. Creationists argue that the EC should not bar ID, because ID can be taught as a purely scientific theory, without any overt references to the Bible, God, a young Earth, a worldwide flood, etc. “It’s just providing information about a theory,” they say. “ID theory does exist, and merely informing the students that the theory exists can’t possibly be construed as promoting religion.” Wrong. That argument relies on the strategy of primitive literalism and amounts to substituting word games for reality. Merely saying, “If I call this religious theory science, then it magically does become science,” is no more sensible than saying, “If I call this turd a steak, it’ll taste yummy.” The SC examines the reality of the case, not just the contrived vocabulary employed by the litigants. (Furthermore, many creationists publicly admit that “ID” is the politically correct term for “God,” so the phony vocabulary is widely ignored, even among creationists.) Looking at reality, in addition to the very serious problems that ID has with religion as documented by Haught and Forrest, there is also the central fact that ID includes the concept of “sudden creation from nothing by a superior being.” That’s a serious problem, because previous courts have already judged that to be an inherently religious concept. Teaching such a theory or even just informing students that the theory exists would have a strong tendency to promote religion and very little scientific value, so it fails the second Lemon test and is unconstitutional. Finally, if merely telling students that ID theory exists has no religious effect, then why is it that virtually all of the mouth-foamers supporting ID come from conservative Christian churches? The ID rhetoric simply doesn’t match up with reality.

    The primitive literalism approach doesn’t work, because it’s too easy to detect the real motivation for anti-evolutionist proposals, even if the word “God” doesn’t actually appear there. In Selman v. Cobb County, the court held that anti-evolutionism has such a close, historical association with fundamentalist religion that Cobb County’s anti-evolution sticker’s primary effect would be to promote that religious view, even though the sticker itself did not mention the Bible, God, or even ID. Merely having a sticker stating, “Evolution is a theory, not a fact,” violates the EC; because, given its historical context, it has a strong religious effect, and little or no scientific effect. Selman is bad news indeed for Dover, because the Dover statement goes much, much further than the Cobb County sticker.

    In nullifying creationist legislation in AR and LA, the courts in McLean and Edwards also cited the historical association of anti-evolutionism and religion. Both cases indicate that ID will not survive constitutional scrutiny unless it produces enough genuine science to outweigh its historical baggage. (As a creationist theory, ID has essentially the same baggage as YEC. In addition to the Forrest and Haught materials cited earlier, also see the pre-trial testimony of Jon Buell, the copyright holder of the ID textbook “Of Pandas and People,” for documentation of the close connection between ID and creationism. Also see the summary of the Kansas hearings cited above.) So far, however, instead of genuine science, ID has produced nothing but abstract statistical calculations with no demonstrated connection to biological reality, and equally abstract speculations about theoretical constructs like irreducible complexity, that don’t have any demonstrated connection to biological reality either. Empty speculations like that are probably not enough to outweigh ID’s close association with creationism and its historical baggage.

    IV. Some creationists try to turn the tables, arguing that evolution itself is also a religious theory, an atheistic theory, and that teaching it therefore violates the EC, because it promotes the religion of atheism. First, note that the argument is inconsistent with all three of the previous arguments. It’s hard to argue with a straight face that the EC applies to the states when evolution is being challenged, but not when creationism is being challenged; that the EC clause mandates separation of church and state when evolution is challenged, but not when creationism is being challenged; or that ID can be taught because it doesn’t mention the Bible, God, or a worldwide flood, but evolution can’t be taught, even though it doesn’t mention the Bible, God, or a worldwide flood. Second, the creationist argument is based on a faulty premise. Evolution is not actually an atheistic theory. In fact, the vast majority of evolutionists in this country are Christians. Starting from a faulty premise, the creationists are not likely to get very far. Not surprisingly, the courts have already rejected the creationist argument, holding that evolution, as a widely accepted scientific theory, has very little religious effect, and very significant scientific effect. Evolution, unlike ID, does pass the second Lemon test, and teaching it does not constitute an endorsement or establishment of religion.

    Naturally, no creationist argument would be complete without some misleading demagoguery. Phillip Johnson, ID’s “intellectual godfather,” serves as the bad example here, arguing that people have the right to object to naturalist philosophy being taught in public schools. Johnson is putting the cart before the horse here. Before one objects to naturalist philosophy “being taught in public schools,” one first ought to verify that naturalist philosophy is in fact being taught. Johnson offers not the slightest scintilla of credible evidence that such is the case. For example, in his book “Darwin On Trial,” Johnson spends over seven pages of the 12-page chapter on “Darwinist Education,” hyperventilating about a museum exhibit in London that he found objectionable. The relevance of that London exhibit to the American public school system is never explained. With less than five pages left in the chapter, Johnson finally addresses our own education system, focusing specifically on the California Policy Statement on science education. Johnson claims that the whole point of the Policy Statement was to promote evolution. His evidence? “. . . the Policy Statement itself does not explicitly refer to evolution.” Johnson then claims that the Policy Statement establishes a philosophical justification for teaching evolution in a dogmatic manner. His evidence? “The Policy Statement emphasizes that neither science nor anything else should be taught dogmatically, because ‘Compelling beliefs is inconsistent with the goal of education,’ which is to encourage understanding.” In other words, under Johnson’s warped analysis, the evidence that science teachers in California teach evolution dogmatically consists of the fact that there is a policy against it. Now I know how women accused of being witches in the Dark Ages must have felt, with people like Johnson sitting in judgment. If a woman admitted being a witch, her confession proved that she was a witch. If she denied being a witch, her denial also proved that she was a witch. Either way, she was toast. Johnson apparently doesn’t see any problem with that. No wonder so many people think that ID actually stands for “ID-iot.”

    Johnson isn’t the only ID-iot who wants to return to the Dark Ages. Michael Behe recently wrote an essay in which he told Catholics that if they had any doubts about evolution, they should just follow whatever the Pope says. Wow. Behe is such a scientific genius to come up with that. That’s the same advice that other ignoramuses dispensed about astronomy in Galileo’s time.

    V. Having lost their two biggest cases on EC grounds (Edwards v. Aguillard and McLean v. Arkansas), creationists switched tactics in later cases, arguing that requiring teachers to teach evolution and/or prohibiting them to teach creationism violated the teachers’ First Amendment rights to free speech and free exercise of religion. Different arguments, same result. First, notice that the argument implicitly accepts that the First Amendment is binding on the states, which conflicts with Argument I, above. Second, it essentially acknowledges that creationism is a religious belief. Third, regarding free speech, the courts have consistently held that free speech is not an unlimited right. Limiting what a teacher may or may not say to impressionable students in public schools does indeed restrict the teacher’s free speech, but that restriction is justified by the state’s compelling interest in maintaining an educational environment in elementary and secondary schools that is free of religious coercion, intimidation, and proselytizing. Fourth, regarding freedom of religion, the courts have held that requiring science teachers to teach scientific theories does not require them to believe in those theories and therefore is not an infringement of the teachers’ religious beliefs.

    It’s interesting to note that creationists didn’t seem all that concerned about unfair censorship in 1925, when they prosecuted John Scopes for teaching evolution. Nor were creationists concerned about unfair censorship from 1925 to 1968, when anti-evolution statutes prohibited teaching evolution in several states. For creationists to start whining about unfair censorship only after their own attempts at censorship failed is the height of hypocrisy.

    Furthermore, the censorship accusation is unwarranted in any case. Evolutionists do not oppose teaching about ID, YEC, or any other form of religion, as long as the teaching is done in an appropriate class, such as history, civics, comparative religion, political science, etc. Many evolutionists and the ACLU have repeatedly advocated teaching about religion in public schools. It is the creationists who are being dogmatic by insisting that they not only be allowed to teach about their religion but that they also be allowed to promote it.

    One final curiosity. Creationists frequently refer to the ACLU as the “anti-Christian lawyers’ union.” That seems strange. If the U.S. Constitution was based on Christian principles, as many creationists vehemently insist, and if the ACLU is dedicated to helping insure that those principles are actually adhered to, then how can it be “anti-Christian” for the ACLU to insist that Christian/constitutional principles be adhered to? Oh well. Nobody ever accused creationists of being sensible.

    VI. Another variation on the same theme is that teaching only evolution violates the students’ academic freedom. Again, the historical background of the dispute reveals the hypocrisy of the creationist argument. Creationists became interested in academic freedom, only after their attempts at censorship failed. However, the real problem is that the academic freedom issue is a red herring. Academic freedom is a legitimate issue at the college and university level, where attendance is voluntary and relatively mature students choose their own courses; but not in primary and secondary schools, where attendance is compulsory and the curriculum for mere youngsters is mandated by state education officials.

    The significant difference between secondary and post-secondary students has been noted in many opinions. Perhaps somebody ought to inform Richard Thompson, the lawyer from the Thomas More Law Center, representing the DASB. After Ken Miller testified that he gave information about alternative theories to the students in the college classes that he teaches, Thompson gleefully told reporters about it as if it were a case-breaking confession. Sigh. Dover’s legal hurdles are very high, and it looks like the person trying to help them over the hurdles is a mental midget.

    VII. The newest fad in creationist legal arguments is that excluding creationism constitutes unlawful “viewpoint discrimination” under the SC’s ruling in Lamb’s Chapel. Lamb’s Chapel was decided in 1993, so the creationists are pretty up-to-date in their legal citations, if not in their science. Citing modern cases, however, doesn’t mean their arguments are right. In fact, they are still wrong. Although the SC in Lamb’s Chapel gave their blessing to activities in school that promoted religion, the activities that the SC approved were non-academic and occurred after school hours, so the case is completely irrelevant to academic activities conducted during school hours. Furthermore, the opinion clearly stated that religious perspectives could and should be denied access under some circumstances, such as when granting access would violate the EC. Since the SC had already ruled that teaching creationism in public school science classes is indeed such a violation, that part of the Lamb’s Chapel opinion completely guts the creationist argument. Creationist lawyers like Phillip Johnson frequently leave that last part out, which just goes to show that quoting out of context is as much a problem for creationist legal arguments as it is for creationist science arguments. Lamb’s Chapel, read in its entirety, provides no support at all for the creationist position.

    VIII. Creationists frequently argue that evolution would have collapsed long ago, if not for its being enforced by tyrannical, liberal judges. That’s doubtful. Evolution is taught at every major, private college and university in this country, including Notre Dame (Catholic), Brigham Young (Mormon), and Baylor (Baptist), — so much for evolution being an atheistic religion — even though tyrannical, liberal judges have no authority over them. Evolution is also taught in very many parochial schools in this country, even though tyrannical, liberal judges have no authority over them. I suspect evolution is also taught at the vast majority of large colleges and universities in Canada, South America, Asia, and Europe, even though tyrannical, liberal, American judges wouldn’t seem to have any authority over those schools either. It would appear that evolution is in no danger of collapse, with or without the allegedly dictatorial rulings of American judges.

    IX. Creationists frequently argue that a majority of Americans want creationism taught in public schools. So? In a constitutional democracy, the majority does not always rule. Just ask Mr. Gore. The EC prohibits laws promoting religion, and the EC trumps opinion polls.

    X. Some creationists argue that there are different sources of knowledge or ways of knowing besides empirical science, and that there is no principled way to determine that one way of knowing is better than any other. That being the case, they conclude that there is no legitimate reason to exclude religion-based knowledge about origins from science classes. Wrong. Whether religion-based knowledge is as reliable as science-based knowledge is irrelevant. First, even granting the premise for the sake of argument, the fact remains that science is a particular way of knowing, and students in science class ought to learn about that particular way, not about some other way. Second, and more important, the argument conflicts with the EC, as explained above.

    In summary, the ridiculous scientific arguments that ID-iots use are matched by their equally ridiculous legal arguments.

    In conclusion, our national economy and military both depend very heavily on science and technology. Even apart from constitutional considerations, sabotaging the science curriculum with religious propaganda could have very unfortunate effects. Science education has traditionally reflected the consensus of the professional science community, and it’s hard to imagine a more objective standard than that. The primary focus of the scientific community is making discoveries that actually work, a pragmatic focus that helps minimize the prejudice-based distortions that afflict most other disciplines. While no human enterprise is perfect, at least science is not systematically or dogmatically biased for or against any particular group, which makes its standards and judgments about as appropriate for pedagogical purposes in this diverse nation as can be imagined. We ought to resist the creationists’ misguided attempts to change that.



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