Saturday, 25 November 2006

Response from Mike Janitch

I recently wrote about a creationist named Mike Janitch. He had blogged about an article in a South African newspaper about a discovery that fills in a tiny gap in our understanding of evolution.

The article reports the discovery of the oldest known lung fish fossil — a relative of the celebrated coelacanth. Experimental DNA evidence from living coelacanths suggested a lineage divergence 410 million years ago, but the oldest previously-known fossil was 390 million years old. That gap suggests that older fossils may exists and that we should look for them. The theory therefore predicts a 410-million-years-old fossil, and we found it. The "new" fossil converges so neatly with the DNA evidence that it could be a textbook example for freshman biology students.

Unfortunately, the article's lede paragraph states that the new discovery "may mean living creatures left the world's oceans for the land much earlier than once thought, rewriting a small part of mankind's evolution." Mr. Janitch took this lede at face value and heralded it as a major blow to evolution.

A month after I blogged Mr. Janitch and this news article, I got an email from Mr. Janitch. He thought I was being unfair and trying to smear him. So I posted the full text of our email exchange, and I will respond to it here. The beginning of his email goes off on a tangent about politics and Bohemian grove, so I'll jump straight to the middle and respond point-by-point.

Firstly, I must retort that I fully read the article in question. As I read anything before I make a blog post about it. However I have deduced something entirely different from the story. My argument is purely logical, and damaging to the theory — it IS damaging when examining this ONE example (there are boundless others I can cite as well if you wish to actually debate this via blogs).

Mr. Janitch's original blog post parroted the article's conclusory lede and failed to consider the facts presented in the body of the article. The author described the convergence of two bodies of evidence. Calculations based on laboratory experiments pointed to the answer, and a fossil provided physical-evidence support. Stated more generally: one branch of evidence made a prediction based upon the theory of evolution, and a totally independent branch of evidence confirmed it by empirical observation.

Not only did Mr. Janitch rely 100% on the lede, he appears to deliberately mislead it. The development of lungs was a significant event in evolutionary history. It made possible new evolutionary paths that were unavailable when animals were confined to the sea. Any significant event in the cladistic lineage of land animals (including humans) is interesting and is therefore the object of study.

The "new" fossil confirms a prediction that places that event earlier than was previously known. This is a minor revision of our known history that better pinpoints a date. It has no effect on the validity of the theory of evolution to explain the development. Whether 20 million years (out of 410 million years) is "much earlier than previously thought" is a judgment call. But this really does affect just "a small part of mankind's evolution."

The series of fish talked about in the article, in this case the coelacanths, just happen to MATTER in a huge way to the Hypothesis of Evolution.

Who remembers learning the difference between a scientific hypothesis and a scientific theory in elementary school? Evolution, like all theories, used to be a hypothesis. But it isn't today.

The fact that a set of bones with similarities has been found proves that since coelacanths are around today — that the fossil which was found from the "supposed" 410 million year old layer of rock, could NOT have evolved, because it CLOSELY matches the current "living fossil coelacanth" of today.

I have a hard time deciphering what Mr. Janitch means here. He seems to share the common misconception that many other creationists have — that, in order for an organism to have evolved, all precursors to that organism must be dead. No theory that I am aware of predicts this, except some creationists' caricatures of evolution.

To use a biblical metaphor, Abraham survived Ishmael's birth and went on to beget Isaac. Later, the sons of Abraham begat two new nations. Speciation (one mechanism of evolution) works in a similar way. Parents do not (usually) die when a child is born. Each children has some genetic variation relative to its parents and its siblings. Some variations thrive in a long lineage, and those variations do not necessarily overwhelm other variations in the population. There is no reason why the parent (or its species) must die out for its children to fork off a competing lineage.

The fact that coelacanths continue to live today neither negates nor supports whether they evolved (or, to be fair, whether they were specially created by a deity). Organisms very much like coelacanths lived 410 million years ago, and we see them in the fossil record. Fossils from that lineage are slightly younger and look slightly less like coelacanths. There are also fossils from that lineage that are much younger and look much less like coelacanths. Looking at fossils that represent the entire lineage, we see smooth and gradual changes from one form to other forms — exactly what evolution predicts.

The notion that the coelacanth is a "living fossil" was created by the media, not scientists, to popularize this interesting case. Scientists once thought the coelacanth was extinct because no fossils of it younger than 65 million years old were known to exist. The capture of a living specimen in 1938 was therefore surprising. But it had no bearing on the validity of evolution.

You also mention that "the fossil evidence verifies the DNA evidence" .... I don't know how a fossil can verify any kind of DNA (unless that fossil you're speaking of had some form of tissue in it).

Interesting. Mr. Janitch admits he doesn't know how DNA analysis is used in the study of cladistic lineages. And he also doesn't ask. But then he argues that its use is invalid.

Mutation occurs at a known rate that we can calculate. Related species often share genes; and, sometimes, they have different versions of the same gene. By comparing two species' versions of the same gene, we can calculate how long ago they shared a common ancestor (with a margin of error, of course). Experimental evidence from living coelacanths' DNA suggested a divergence around 410 million years ago, but the oldest fossils we had found were 390 million years old. Older fossils were therefore predicted, and now they are found.

Mr. Janitch completely misreads this portion of the original article. (Not that this was well explained in the article, however.) The article quotes Professor John Talent:

"It seems from experimental data with living coelacanths that there should have been older ones [than we had previously found in the fossil record]," Talent said. "What we've done is close the gap — we've got the fossil right back near the origin of this group."

If DNA evidence predicts a common ancestor at a given time, and we find a fossil resembling what we expect that dates from the predicted time, the prediction based upon DNA evidence is confirmed. What better evidence could there be for evolution?

I recommend Richard Dawkins' explanation of this technique in The Blind Watchmaker.

Think about it logically for a second, the theory of evolution, as you said, "predicted" the existence of some kind of "intermediate" fish... however this was not found.... all they found was a similar coelacanth. Also the fact that since coelacanths are alive today, it is an obvious conclusion that the coelacanths will be FOUND ANYWHERE throughout the layers of rock.

What else could an intermediate or transitional fossil be, except very similar to the one before it? Evolution not only predicts — even demands — "a similar coelacanth". Without that, we would have special creation. As I said in my initial blog post, "Used to be, a gap in the fossil record was evidence for creationism or intelligent design, or at least an indication that evolution may not be accurate. Since that argument didn't work, Mr. Janitch apparently now claims that filling in those gaps makes evolution inaccurate."

So to add 20 million years onto the "timeline" of evolution is a joke, and like trying to bandage a wound from a landmine.

I'm not sure what this means or what Mr. Janitch thinks it means. The discovery closed a gap in the fossil record. Paleontologists are the first to admit that the fossil record has gaps because our methods of finding fossils are imperfect. Evolution is supported, however, when a prediction is made that we should find a particular fossil of a certain age and that fossil is later found.

Also, since these coelacanths have supposedly been around for HUNDREDS of millions of years.... you would think they would "evolve" into something different than what they looked like from that long ago. Rather, it is obvious they haven't evolved at all.

The WHOLE theory of evolution is based upon the supposition (without observation I might add), based upon the theory that LOBED FIN FISH somehow "changed" into amphibians.

Well.... this set of LOBED FIN FISH never changed. Thus proving that the theory of evolution (if it is true) never took place in these animals — or cockroaches, ferns, conifers, bees etc.... there are hundred of examples of insects, animals, and plants which have been around since the dawn of time, but have NOT EVOLVED FOR SOME REASON.

Mr. Janitch merely repeats the misconception that he introduced earlier. This misconception arises from the simplistic (and incorrect) notion that evolution is defined as something like "biological change over time". A particular form of organism will remain unchanged over time if selective pressures conserve that form. The longevity of a form has no bearing on whether it evolved. I happen to be more familiar with the crocodilian lineage than the examples Mr. Janitch mentions. Crocodilians appear to have emerged 98 – 95 million years ago, and the basic modern forms we see today had evolved by 65 million years ago (the time of the dinosaur extinction). They still exist today because they are well adapted to the environments where they live. We still see what evolution predicts, however — early transitional forms from other, similar animals (e.g., Junggarsuchus sloani and Isisfordia duncani) as well as some extinct forms (e.g., Dakosaurus andiniensis).

As PZ Myers writes:

A species that exhibited no variation at all, and that showed no change over time, not even neutral molecular differences, would be a major puzzler for biology. No such thing has ever been observed. On the other hand, gross structural stasis over a long period of time is no problem for evolution. One thing even many biology students have some difficulty grasping is that selection is a conservative force; it tends to limit variation to the narrower domain of the viable and the competitive.

Also, evolution does not predict that every member of a species' generation will change in the same way toward something new. Evolution does not predict that all lobed fin fish changed into amphibians. Indeed, that would be surprising. Instead, evolution predicts that genetic variations in some lobed-finned fish lineages led, over time, to forms that we recognize today as amphibians. The rest of the lobe-finned fish were free to continue living as they pleased.

As for "gaps" in the fossil record. There are huge crevasses, not just gaps. You have to find an INTERMEDIATE species! Care to explain how the original coelacanth came to be? The obvious answer for the evolution believer (you) — would be that this family of fish came from a genetically different set of fish.

At some point, a non-coelacanth gave birth to a coelacanth!

So where has it been observed that a different lobed fin fish gave birth to a coelacanth? This would prove macro-evolution. But there is NO fossil evidence of a partial or transitional fossil.

This is another common a misconception, that the notion of "species" has evolutionary significance. Modern biology grew up in the golden age of taxonomy, and taxonomists like to organize the world into categories. It is therefore common practice to apply a label to each fossil we find. But to paraphrase Richard Dawkins, don't let linguistics interfere with physical reality. A series of fossils showing smooth and gradual transition does become an unconnected series of steps simply because we like to apply a unique name to each one.

Even if evolution did predict what Mr. Janitch suggests, we would not expect to find those two particular individuals in the fossil record. Fossilization is rare, and our methods of finding fossils are imperfect.

To quote PZ Myers again:

The answer is that modern coelacanths are specialized remnants of a once diverse and widespread group. They have changed extensively over hundreds of millions of years, as would be expected, and this once widely successful and branched family has been pruned back to just a few twigs lurking in relatively inaccessible locations. Here, for instance, are a few fossil examples of ancient coelacanth diversity (Clack, 2002):


A. Macropomoides orientalis, late Cretaceous
B. Rhabdoderma elegans, late Carboniferous
C. Allenypterus montanus, early Carboniferous

Mr. Janitch goes on:

I have debated many other "evolutionists", and it tends to be fruitless when trying to convince a BELIEVER that the "theory" has been downgraded to a specious hypothesis.

I know of no scientist who would consider the theory of evolution to be "downgraded" to the status of hypothesis — whatever that means. I am unaware of any scientific theory that has ever been "downgraded". In science, a theory is an overarching explanation for a body of data. Science simply discards disproved theories; it does not "downgrade" them to some lesser status.

The only thing I can do is point you towards one of your fellow evolutionists. Stephen J. Gould... a prominent biology professor from Harvard... said himself that there are NO TRANSITIONAL fossils between species. The fossil record is ABSENT of any proof of transition between one species and another.

I am unaware of any such statement by Stephen J. Gould, that transitional fossils do not exist. If he did say that, I welcome you to provide me with a specific citation to Gould's published writings or public statements. Good luck.

Punctuated equilibrium (prominently advocated by Gould and Niles Eldredge) is a modified form of gradualism that creationists often misunderstand to be in conflict with Darwin's theory of evolution by natural selection. Actually, punctuated equilibrium is like a sub-theory of evolution that Gould advocated to explain the mechanics of evolution under certain circumstances within a taxa or between closely related taxa. Gould argued that transitional fossils are lacking in the fossil record not because transitional organisms don't exist — but rather because evolutionary change under such conditions occurs too rapidly (in a small-enough number of generations) that the transitional organisms are unlikely to fossilize and be recorded in the strata. Geological strata form slowly — more slowly than evolution by punctuated equilibrium would operate.

The key point is that Gould's argument about the lack of transitional fossils only holds true within a taxa or between closely-related taxa. He argued that species are generally morphologically constant during long periods of stability, then evolve quickly under short periods of intense selective pressure. Those periods of intense selective pressure are shorter than the time it takes to form a geological stratum, so it is likely that the transitional forms would not be recorded even if they fossilize.

The only fossils which exist — are fossils of alike species.

That is to say, that birds can be traced back to an original species of BIRD...that Canines can be traced back to an original kind of Canine. Felines can be traced back to an original kind of feline. Different types of Dinosaurs can be traced back to each of their respective types.

Aaahhh…the taxonomy problem again.

There are no INTERMEDIATE skeletons anywhere... which means one of three possible things....

1) either evolution happens SO FAST, that you literally have a fish give birth to a frog, or a dinosaur egg hatches out a bird — and it MUST happen TWICE in the same geographic area — once for a male and once for a female — then the male and female would have to find each other on top of that (because they would have to reproduce the "new kind" of animal). If you ever took statistics, you would quickly see that the sheer probibility [sic] of this happening is astronomical for JUST ONE set of animals.

You would have to believe that this astronomical chance would happen with EVERY SPECIES to ever walk the earth, or swim the oceans. Which is statistically impossible to assume (since it has never been observed anyway).

2) or evolution happened very slowly, but without leaving ANY fossil evidence...

3) evolution didn't happen, and the only other possible explanation for thousands of types of animals popping up out of nowhere is Intelligent Design/Spontaneous Creation. (much like the problem of matter coming into existence — cosmology).

This crescendo summarizes the mistakes in reasoning that Mr. Janitch has made all along. First, "intermediate skeletons" are everywhere. True, we may have no fossil record of a transitional form between any two closely related species. But in many cases, one of those two is the transitional form between the other one and something completely different. There couldn't ever be an "intermediate skeleton" that isn't classified into any species because each specimen is classified as soon as it is found. If it doesn't fit into a known species, a new species is named for it. We have, for example, a well-developed record of fossilized ancestors leading directly to modern humans, going back roughly seven million years, when we shared our most recent common ancestor with other living apes. Each of those fossilized ancestors is pigeon-holed into a species; or, in some cases, a new species was defined for the "new" fossil. Mr. Janitch, and many other creationists, allow the species nomenclature to blind them to the fact that if we were to line up all those skeletons on a table, we would see a smooth and gradual transition from an ape-like ancestor to ourselves.

I won't comment on cosmology, since this response is already long.

So to sum it up, I think you're wrong, and made a lame attempt to smear me.

My intent was not to smear, although I understand in retrospect how it might appear that way to Mr. Janitch.

The wonderful thing about blogging, is that I can post this response, and let my readers (and your readers) decide for themselves. Gone are the days of having evolution forced down the throat of the sheeple (hah)!

Evolution has never been "forced down the throat" of anyone. It is taught in classrooms around the world where creationism and intelligent design (a special case of creationism) are not taught because evolution has a scientific foundation that the others lack. I have never seen a non-disingenuous argument to the contrary. Rather, when a theory of life is forced upon people, it is invariably the proponents of religion who are doing it. Look no further than Dover, Pennsylvania for a detailed history.

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Saturday, 16 September 2006

One creationist's reading comprehension

Today I discovered a fellow from the radical right-wing named Mike Janitch, who writes a blog. His post "Evolution.. add 20 million years here, lose 20 million years there.." caught my attention. In it, he describes a news article as the latest in a long series of gaping holes in the theory of evolution.

The article reports the discovery of the oldest known lung fish fossil. At 410 million years old, it is 20 million years older than the previously oldest known fossil of its kind. The lede states that the "new" fossil "may mean living creatures left the world's oceans for the land much earlier than once thought, rewriting a small part of mankind's evolution." Janitch heralds this as a major blow to evolution.

If only Janitch had read the entire article.... Seven paragraphs must have been pretty burdensome. The rest of the article shows that the lede is misleading.

Experimental data with living coelacanths suggested a divergence of lineages around 410 million years ago. The fact that we had fossil evidence dating back only 390 million years represented a 20-million-year gap in the fossil record. This discovery bridges that gap. The fossil evidence now matches the DNA evidence. Two separate and totally independent lines of evidence — compiled by totally independent groups of scientists — point to exactly the same thing. That thing is evolution.

Used to be, a gap in the fossil record was evidence for creationism or intelligent design, or at least an indication that evolution may not be accurate. Since that argument didn't work, Mr. Janitch apparently now claims that filling in those gaps makes evolution inaccurate.

The theory of evolution predicted the existence of a fossil that had not yet been found. The fossil has now been found exactly where it was predicted to be. Nothing else makes a scientific theory stronger.

Update (25 Nov. 2006): I got emails from Mr. Janich and responded in this blog.

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Sunday, 25 December 2005

Misguided Balance

Matthew Nisbet asks an important question over at his new blog, Framing Science. The post in question is "MISGUIDED BALANCE: The Question of the Day." His question and the articles he links to are highly recommended reading.

If Judge John E. Jones III, a conservative, a lifelong Republican activist, an assistant Scout Master, appointed by George W. Bush, close friends with Rick Santorum, and with aspirations to be Governor of Pennsylvania, can weigh the evidence for and against intelligent design and conclude that it is perhaps the most one-sided policy debate in history, a "slam dunk," why couldn't many political reporters do the same in their coverage leading up to the trial?

In other words, why did reporters in so many cases resort to an artificial "he said, she said" balancing in their coverage of intelligent design when there was an *OVERWHELMINGLY* clear basis by which to evaluate claims?

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Local reactions to Kitzmiller decision

The York Daily Record provided daily coverage of the Kitzmiller v. Dover trial. Last week the paper asked locals to sound off about Judge Jones' Readers' thoughts")

Some reactions were predictable. See, for example, Max Mann of Dover Township:

Who won? The school teachers, the York Daily Record and the ACLU. Who lost? Morality. What's next? Whatever the liberals decide. Locally? God forgive the people and the pathetic Mike Argento. The nation? Thank God for the state of Kansas which voted to support it.

and Mike James of Dover:
I think the decision is wonderful. The old school board should be educated on the separation of church and state. The bill of $1 million should be mailed to each one on the board and they should pay the fee that we are going to have to pay because of their stupidity.

Some were harsh, such as John N. Fishel of Dallastown:
It is revealing that those who advocate the simple-minded gobbledygook known as intelligent design are by and large themselves not very intelligent, including the most notable example, the missing link who is now the occupant of the White House.

My favorite is Linda Shaffer, who babbled so incomprehensibly that I can only shake my head and grieve for the school where she received her "education" (using that term loosely):
I don't understand how he can use the (constitutional) separation of the state and religion when that was a letter by Jefferson. That is not found in our Constitution. I don't understand why everybody isn't standing up and saying, 'You can't use that, because there is no separation of church and state in the Constitution.' I'm baffled.

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Saturday, 24 December 2005

School boards consider Kitzmiller decision

Laurie Goodstein writes in today's New York Times that school boards across the country are discussing Judge Jones' decision in Kitzmiller v. Dover in the context of their debates on whether to incorporate intelligent design into their biology curricula ("Schools Nationwide Study Impact of Evolution Ruling").

As has been noted elsewhere, this will likely be the chief impact of the decision. A U.S. District Court ruling binds only the parties to the case at bar; as a formal matter, it has no application elsewhere. A District Court decision can, however, be persuasive authority that other courts may follow and that potential litigants may follow to avoid being sued over similarly illegal policies. See e.g., McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (1982), which the Kitzmiller court analyzed extensively in its decision.

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Wednesday, 21 December 2005

Burden of evidence shifting to ID?

The New York Times published its story on the Kitzmiller v. Dover decision late yesterday, much later than many other news outlets (link: "Judge Rejects Teaching Intelligent Design"). It includes a gem that I did not see elsewhere.

Reporter Laurie Goodstein quotes William A. Dembski (a fellow of the Discovery Instutute, Executive Director of the International Society for Complexity, Information, and Design): "I think the big lesson [from Judge Jones' decision] is, let's go to work and really develop this theory and not try to win this in the court of public opinion," Dr. Dembski said. "The burden is on us to produce."

My question: When was it ever otherwise?

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Tuesday, 20 December 2005

Kitzmiller v. Dover decision

Judge Jones issued his ruling in Kitzmiller v. Dover: intelligent design cannot be taught in public school biology classrooms because (1) ID is not science, and (2) the Dover school board acted with impermissible religious motivation.

The court's web site is getting crushed by traffic this morning, so I posted the decision here [319kb pdf].

News coverage: Wired, CNN, Bloomberg, York Daily Record.

The court's conclusion is emphatic (beginning at page 136):

H. Conclusion

The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board's ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

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.

To be sure, Darwin's theory of evolution is imperfect. However, the fact that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions.

The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.

With that said, we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom.

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. We will also issue a declaratory judgment that Plaintiffs' rights under the Constitutions of the United States and the Commonwealth of Pennsylvania have been violated by Defendants' actions. Defendants' actions in violation of Plaintiffs' civil rights as guaranteed to them by the Constitution of the United States and 42 U.S.C. 1983 subject Defendants to liability with respect to injunctive and declaratory relief, but also for nominal damages and the reasonable value of Plaintiffs' attorneys' services and costs incurred in vindicating Plaintiffs' constitutional rights.

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Thursday, 1 December 2005

First Amendment analysis of Berkeley evolution web site

A lawsuit filed by Jeanne and Larry Caldwell against the operators of an educational web site about evolution (called "Understanding Evolution"), hosted by the University of California at Berkeley, has received international attention. Apparently, they claim that the use of public funds (a National Science Foundation grant) to write and publish documents that promote belief in evolution (which the Caldwells appear to believe contradicts their religion) violates the establishment clause of the First Amendment.[FN1] This is my "quick and dirty" First Amendment analysis.[FN2]

In general, the Berkeley site seems, to me, to be on solid ground, although the First Amendment establishment caselaw sometimes requires a very narrow focus on the particular statements at issue, as opposed to on the web site in general. From what I gather from news reports, only one element (or a small number of elements) of the site appears to be under attack. I think that element will survive First Amendment scrutiny, although, personally, I think it was a bonehead thing to publish in the first place. The statements being attacked are pretty foolish.

Some news articles report that the suit seeks to force the site operators not to "mention" religion. I doubt those reports are accurate, since a prohibition on "mentioning" religion would clearly be too broad. The courts have upheld or favorably discussed many government mentionings of or references to (1) religion generally, (2) particular religions, and (3) religious doctrines. For example: "In God We Trust" printed on money, presidential proclamations declaring a national day of prayer and thanksgiving, public offices closing on "Christmas Day," prohibitions on selling alcohol on Sundays, and the recitation of a prayer at the beginning of each session of Congress and of the Supreme Court.

The First Amendment analysis most often used by federal courts is the "Lemon test," named for the Supreme Court decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). The original Lemon test had three prongs: (1) whether the state action (or law) has a religious purpose, (2) whether the state action has the primary effect of advancing or inhibiting religion, and (3) whether the state action excessively entangles the government and religion. In more recent cases, the last two prongs have been merged (or at least brought close together), so today there are really two prongs: a "purpose" prong and an "effects" prong. The prongs were further muddied in the late 1990s when one of the Justices wrote in Agostini v. Felton that excessive entanglement is one factor to consider in determining whether a state action's primary effect is religious (the other two factors being government indoctrination and defining the recipients of government aid based on religious criteria).

Courts also sometimes use the so-called "endorsement test" when the government is engaged in expressive activities like publishing documents or sponsoring speakers (such as commencement speakers at public schools). The endorsement test asks whether the state action somehow endorses a particular religious viewpoint. The rationale, according to Justice O'Connor, is that such endorsement can make some people appear to be favored and others appear to be outsiders in the political community on the basis of whether they share the religious belief endorsed by the government. (Justice O'Connor urged adoption of this test in 1984, in a concurring opinion in Lynch v. Donelly, 465 U.S. 668 (1984). I am not sure if the Supreme Court has ever expressly adopted it, but the Court does now use it as part of the Lemon test, as a factor to consider in determining if the state action has the purpose or effect of advancing religion.)

Finally, where the use of public funds is concerned, the Supreme Court applies the "neutrality" test, which asks whether the state action treats religious groups in the same manner as other similarly-situated groups. Use of the neutrality test is a more recent trend, and it has been applied most often in cases involving government aid to schools that are affiliated with religious entities (e.g., vouchers, textbook handouts, and E-Rate).

That is a nutshell of the law. Now for some facts about the Understanding Evolution site.

The site's search engine returns three hits for "religion." One is the particular FAQ (frequently asked question) that is receiving all the attention. It is only one FAQ among many. That FAQ also provides a link to a web page of the National Center for Science Education (NCSE) which contains statements about evolution from religious organizations. The second hit contains the site credits, where a biographical blurb for Alan D. Gishlick states that Dr. Gishlick is interested in "the interface between science and religion, especially as it relates to biological evolution." The third hit is a list of FAQs on the controversies surrounding the teaching of evolution, which mentions the word religion solely in the context of a link to the same NCSE web page mentioned above. The rest of the FAQ answers on that page appear to be external links to other web sites with a terse description of what is on each external page.

Looking at the Understanding Evolution site as a whole, its mentionings of religion seem, to me, to be tangential and incidental to its main focus. The main focus appears, to me, to be just what is set forth in the site's "About" page: "Understanding Evolution is a non-commercial, education website, teaching the science and history of evolutionary biology. This site is here to help you understand what evolution is, how it works, how it factors into your life, how research in evolutionary biology is performed, and how ideas in this area have changed over time." That seems, to me, to be a good faith description of the contents of the site.

In the framework of existing caselaw, I doubt a court would rule any part of the site unconstitutional. It would be hard to construct a convincing argument that the site's primary purpose is other than scientific and educational. The site's primary effect is to disseminate facts about evolution and explanations of related concepts, with the intent of helping educators teach. I doubt anyone can plausibly argue that the site excessively entangles the government in any church or religious doctrine. The mere mention of a handful of religious entities and providing links to copies of their public statements hosted elsewhere does not seem, to me, to be particularly entangling or to endorse those particular religions over others.

Under the neutrality test, I think the proper question is whether the National Science Foundation (NSF) would, under the right circumstances, give a grant similar to the one it gave to Berkeley to a church if the church had submitted a proposal to create an educational web site about evolution that meets the same criteria as the Berkeley site — i.e., that it disseminates valid scientific information, that it is helpful to teachers, etc.

On the other hand, the particular FAQ that mentions religion does have some endorsement problems. It makes specific, declarative statements that evolution and "religion" are not incompatible and states that many religious groups accept evolution as fact. Those statements clearly have the effects of inhibiting (however slightly) religions which purport to be incompatible with evolution and of endorsing or advancing (however slightly) religions which purport to be compatible with evolution. They also have the effect (however slight) of making some people (e.g., fundamentalist protestants?) feel like outsiders.

Just how slight or not-slight those effects are is debatable — hence the endorsement problem and the need for good lawyers.

On the whole, I think the operators of the site have little to worry about. They might be ordered to revise or remove that particular FAQ. Rewording it in terms of particular religious groups rather than "religion" would make it more likely to survive First Amendment scrutiny. The site's controversy FAQs are instructive: they address much narrower concepts than "religion" (e.g., "What is Creationism?" and "What is intelligent Design?"), and they simply provide links to other web sites with terse introductions, without editorializing.

Believe it or not, that is the "quick" analysis.



Footnotes:

  1. I have not read the Complaint; if anyone can provide a link to it, please email me.


  2. I originally wrote this essay as an email to a friend who had asked me about the Caldwell suit over dinner. The result was a very long email, so I decided to post it here. Please note one caveat: I wrote the caselaw summary almost entirely from memory which is now 2+ years old, so a mistake or two is possible. I will correct any errors brought to my attention.

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    Topics: Civil Liberties, Evolution, Science, Skeptical Inquiry



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