+ [174]III. INTELLIGENT DESIGN IS NOT SCIENCE o [175]33. Intelligent design is not science. It fails on three distinct levels, any one of which invalidates the proposition: a) by invoking and permitting supernatural causation, intelligent design violates the centuries-old ground rules of science; b) intelligent design, including it's poster child argument, [176]irreducible complexity, employs the same flawed and illogical, contrived dualism that doomed creation science in the 1980's; and c) intelligent design's negative attacks on evolution have been refuted by the scientific community. Furthermore, intelligent design has failed to gain acceptance in the scientific community, generate peer-reviewed publications, or been the subject of testing and research. + [177]A. Reliance on Supernatural Causation Removes Intelligent Design from the Realm of Science o [178]34. The word "science" derives from the Latin word scientia, which means knowledge. [179]1:58-59 (Miller). As distinguished from the social sciences like political and library science, the natural sciences include biology, chemistry, astronomy, physics. [180]1:59. References to "science" hereafter, unless otherwise noted, are to the natural sciences. o [181]35. Since the scientific revolution of the 16^th and 17^th centuries, science has been limited to the search for natural causes to explain natural phenomena. [182]9:19-22 (Haught); [183]5:25-29 (Pennock); [184]1:62 (Miller). This revolution entailed the rejection of the appeal to authority, and by extension, revelation, in favor of empirical evidence. [185]5:28 (Pennock) ("That's probably what's most characteristic of the scientific revolution, rejecting appeal to authority and saying we will appeal just to the evidence, the empirical evidence."). Consequently, since that time, science has been a discipline in which testability, rather than any ecclesiastical authority or philosophical coherence, has been the measure of a scientific idea's worth. [186]9:21-22 (Haught); [187]1:63 (Miller). o [188]36. Science has deliberately left out theological or "ultimate" explanations for the existence or characteristics of the natural world. [189]9:21 (Haught). Science does not consider issues of "meaning and purpose" in the world. [190]1:64, 87 (Miller). o [191]37. Supernatural explanations are important and may have merit, but they are not part of science. [192]3:103 (Miller); [193]9:19-20 (Haught). o [194]38. This self-imposed convention of science, which limits inquiry to testable, natural explanations about the natural world, is referred to by philosophers as "methodological naturalism." [195]5:23, 29-30 (Pennock). o [196]39. Methodological naturalism, also sometimes known as the scientific method, is a "ground rule" of science today. [197]1:59 (Miller); [198]5:8, 23 (Pennock). This "ground rule" of science requires scientists to seek explanations in the world around us based upon things we can observe, test, replicate and verify. [199]1:59-64, [200]2:41-43 (Miller); [201]5:23-30 (Pennock). Professor Minnich agrees that methodological naturalism is the current rule of science. [202]38:97. o [203]40. The National Academy of Sciences (NAS) was recognized by experts for both sides as being the "most prestigious" scientific association in this country. [204]1:94 ("probably the most prestigious scientific association in the world"), 160-61 (Miller); [205]14:72 (Alters); [206]37:31 (Minnich). Accordingly, where appropriate, the Court cites to the NAS position. o [207]41. NAS agrees that science is limited to empirical, observable and ultimately testable data: "Science is a particular way of knowing about the world. In science, explanations are restricted to those that can be inferred from the confirmable data the results obtained through observations and experiments that can be substantiated by other scientists. Anything that can be observed or measured is amenable to scientific investigation. Explanations that cannot be based on empirical evidence are not a part of science." P649, at 27 (Teaching about Evolution and the Nature of Science, National Academy Press (2003)). The restriction to natural explanations in science is implicit in this definition because non-natural explanations are not testable. o [208]42. This rigorous attachment to "natural" explanations is an essential attribute of science. [209]1:63 (Miller); [210]5:29-31 (Pennock). Both definitionally and by convention, science is limited to "natural" explanations. [211]5:29-30 (Pennock). Science is the "systematic search for natural explanations for natural phenomena." [212]1:59, 63 (Miller); [213]5:30 (Pennock). This search is dependent on empirical observations what we can observe and measure --that can be tested, replicated and disproven. [214]1:63 (Miller). If non-natural explanations are allowed, e.g., Dr. Miller's example about God's role in helping the Red Sox win the world series, the systematic search for "natural causes" is completely undermined. [215]1:63-64 (Miller). As Pennock testified, allowing non-natural explanations is "cheating"; you "can't just call for quick assistance to some supernatural power. It would certainly make science very easy..." but it would also fundamentally alter the practice of science. [216]5:30 (Pennock). From a practical perspective, attributing unsolved problems about nature to causes and forces that lie outside the natural world is a "science stopper." [217]3:14-15 (Miller). Once you attribute a cause to an untestable supernatural force, a proposition that cannot be disproven, there is no reason to continue seeking natural explanations we have our answer. Id. o [218]43. Intelligent design is predicated on supernatural causation. [219]17:96 (Padian); [220]2:35-36 (Miller); [221]14:62 (Alters). Intelligent design takes a natural phenomenon and, instead of accepting or seeking a natural explanation, argues that the explanation is supernatural. [222]5:107 (Pennock). o [223]44. The intelligent-design reference book cited in the Dover statement as describing "what intelligent design actually involves," Of Pandas and People, is clear that the idea entails supernatural causation: "Darwinists object to the view of intelligent design because it does not give a natural cause explanation of how the various forms of life started in the first place. Intelligent design means that various forms of life began abruptly, through an intelligent agency, with their distinctive feature already intact fish with fins and scales, birds with feathers, beaks, and wings, etc." P11, at 99-100. (Emphasis added). In other words, animals did not evolve naturally, through evolutionary means, but rather were created abruptly by a non-natural, or supernatural, designer. o [224]45. Even defendants' own expert witnesses acknowledged this point. [225]21:96-100 (Behe); see also, P718, Michael Behe, Reply to Critics, at 696, 700 ("implausible that the designer is a natural entity"); [226]28:21-22 (Fuller) ("...ID's rejection of naturalism and commitment to supernaturalism..."), 24; [227]38:95-96 (Minnich) (ID does not exclude possibility of supernatural designer, including deities). o [228]46. Indeed, defendants' argument, which mirrors that of the intelligent-design movement, is to change the ground rules of science to allow supernatural causation of the natural world. [229]5:32 (Pennock). Professor Fuller agreed that intelligent design aspires to "change the ground rules" of science. [230]28:26. Professor Behe admitted that his broadened definition of science, which encompasses intelligent design, would also embrace astrology. [231]21:37-42 (Behe). Professor Minnich acknowledged that for intelligent design to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural causes. [232]38:97. o [233]47. William Dembski, an intelligent-design-movement leader, proclaims that science is ruled by methodological naturalism and argues that this rule must be overturned if intelligent design is to prosper. [234]5:32-37 (Pennock). Dembski contends that "the scientific picture of the world championed since the Enlightenment is not just wrong, but massively wrong. Indeed, entire fields of inquiry, including especially the human sciences, will need to be rethought from the ground up in terms of intelligent design." [235]5:35 (Pennock); P341 (William Dembski, Intelligent Design: A Bridge Between Science and Theology, at 224. o [236]48. The Discovery Institute, the think tank promoting intelligent design, has also acknowledged that the goal is to "defeat scientific materialism" and "to replace materialistic explanations with the theistic understanding that nature and human beings are created by God." P140, at 6 (The Wedge Document). See supra. ¶ 11. o [237]49. Every major scientific association that has taken a position on this issue has stated that intelligent design is not, and cannot be considered, science. [238]1:98-99 (Miller); [239]14:75-78 (Alters); [240]37:25 (Minnich). o [241]50. For example, NAS views intelligent design as follows: "Creationism, intelligent design, and other claims of supernatural intervention in the origin of life or of species are not science because they are not testable by the methods of science. These claims subordinate observed data to statements based on authority, revelation, or religious belief. Documentation offered in support of these claims is typically limited to the special publications of their advocates. These publications do not offer hypotheses subject to change in light of new data, new interpretations, or demonstration of error. This contrasts with science, where any hypothesis or theory always remains subject to the possibility of rejection or modification in the light of new knowledge." P192, at 25 (National Academy Press, [242]Science and Creationism: A View from the National Academy of Sciences (2d Ed. 1999)). o [243]51. The largest organization of scientists in this country, the American Association for the Advancement of Science ("AAAS"), has taken a similar position on intelligent design, namely, that it "has not proposed a scientific means of testing its claims" and that "the lack of scientific warrant for so-called `intelligent design theory' makes it improper to include as part of science education...." P198 ([244] AAAS Board Resolution on Intelligent Design Theory, Oct. 18, 2002). o [245]52. Neither plaintiffs' nor defendants' expert witnesses identified a single major scientific association, society or organization that endorsed intelligent design as science. o [246]53. Defendant's experts admit that intelligent design is not a theory as that term is defined by the NAS. [247]21:37-38 (Behe); Fuller Dep. 98. According to Professor Behe, intelligent design is a scientific theory only if that term is defined loosely enough to also include astrology. [248]21:38-39. o [249]54. Defendants' expert Steve Fuller described intelligent design as "fringe science," which need affirmative action to become accepted. [250]28:47 Defendants' expert Scott Minnich admitted that intelligent design has achieved no acceptance in the scientific community; it is science "in its infancy." Minnich Dep. at 89. o [251]55. Intelligent design does not, therefore, meet the essential ground rules that limit science to testable, natural explanations. [252]3:101-03 (Miller); [253]14:62 (Alters). o [254]56. Science cannot be defined differently for Dover students than it is defined in the scientific community as an affirmative action program for a view that has been unable to gain a foothold within the scientific establishment. Intelligent design's failure to meet the ground rules of science is alone enough for this Court to rule that it is not a scientific view. + [255]B. Intelligent Design Relies on the Same Logically Flawed Argument that Doomed Creation Science o [256]57. Intelligent design is premised on a false dichotomy, namely, that to the extent evolutionary theory is discredited, intelligent design is confirmed. [257]5:41 (Pennock). This same argument, termed "contrived dualism" in McLean v. Arkansas Board of Education, was employed by creationists in the 1980's to support "creation science." This argument is no more availing to justify intelligent design today than it was to justify creation science two decades ago. o [258]58. Intelligent design proponents primarily argue for design through negative argument against evolution, including Professor Behe's argument that "irreducibly complex" systems cannot be produced through Darwinian, or any natural, mechanisms. [259]5:38-41 (Pennock). [260]1:39, [261]2:15, [262]2:35-37, [263]3:96 (Miller); [264]16:72-73 (Padian); [265]5:38-41 (Pennock); [266]10:148 (Forrest). Intelligent design attempts to "poke holes" in evolutionary theory to say that Darwinian mechanisms, meaning natural causes, cannot explain life's complexity. [267]5:39 (Pennock). o [268]59. For example, Professor Behe argued that intelligent design "focuses exclusively on the proposed mechanism of how complex biological structures arose," [269]21:63, but admitted that intelligent design does not propose any mechanism, just a negative argument against natural selection. [270]21:84-87. He also conceded that, "Pandas is making a negative argument against common descent to ... more greatly enhance the plausibility of the alternative of intelligent design." [271]21:82. o [272]60. The following passages from Of Pandas and People, P11, also reflect this negative argument against evolution: "Design proponents have long asserted that gaps in the fossil record are evidence for intelligent design," at 87; "Since it is not reliable, most of the so-called evidence for macro-evolution (and conversely against intelligent design) obtained from comparative anatomy and embryology is weak and could turn out to be misleading..." at 133 (parenthetical in original); Multiple accidental gene mutations are a highly improbable source of new genetic information to code for multi-functional structures...." at 72; and "[n]o creatures with a partial wing or partial eye are known. Should we close our minds to the possibility that the various types of plants and animals were intelligently designed? This alternative suggests that a reasonable natural cause explanation for origins may never be found, and that intelligent design best fits the data...." at 99-100. o [273]61. Arguments against evolution are not arguments for design. Just because scientists cannot explain today how biological systems evolved does not mean they cannot, and will not, be able to explain them tomorrow. [274]2:36-37 (Miller). In Dr. Padian's words, "absence of evidence is not evidence of absence." [275]17:45. Testimony from Drs. Miller and Padian was replete with examples where Pandas asserted that no natural explanations exist, and in some cases that none could exist, and yet natural explanations have been identified in the intervening years, e.g., intermediate fossils showing evolution of the whale, evolution of the immune system, mapping of the chimpanzee genome "spectacularly confirming" common ancestry between humans and great apes, etc. o [276]62. Just because scientists cannot explain every evolutionary detail does not undermine its validity as a scientific theory. No theory in science is fully understood. [277]3:102 (Miller). But that is true in other areas of knowledge, too. We do not know every detail about what happened at Gettysburg, but historians do not doubt the fact of the battle and know a great deal about how it unfolded. [278]3:104-05 (Miller). Just because we do not know every detail about Gettysburg or how evolution progresses does not mean we are not confident that the battle occurred or that the theory of evolution is the best scientific explanation for change over time. Id. o [279]63. According to defendants' own expert, Stephen Fuller, design does not logically follow from scientists' inability to explain every detail of how evolution occurred. [280]28:63-66. See also [281]2:40 (Miller). In fact, Professor Fuller testified that even if the negative argument of [282]irreducible complexity disproved natural selection, it does not follow that intelligent design is proved because it does not rule out rival hypotheses. Fuller Dep. at 167-70. + [283]C. Irreducible Complexity Fails Even as a Purely Negative Argument Against Evolution o [284]64. [285]Irreducible complexity, intelligent design's alleged scientific centerpiece, is simply a negative argument against evolution, not proof of design, [286]2:15 (Miller), a point conceded by Professor Minnich. [287]38:82 (irreducible complexity "is not a test of intelligent design; it's a test of evolution"). It fails to make any positive scientific case for intelligent design. Moreover, the evidence demonstrates that irreducible complexity fails even as a purely negative argument. o [288]65. Irreducible complexity was defined by Professor Behe in Darwin's Black Box and modified in his 2001 article Reply to My Critics, as follows: ""By irreducibly complex I mean a single system which is composed of several well-matched, interacting parts that contribute to the basic function, wherein the removal of any one of the parts causes the system to effectively cease functioning. An irreducibly complex system cannot be produced directly by slight, successive modifications of a precursor system, because any precursor to an irreducibly complex system that is missing a part is by definition nonfunctional. *** Since natural selection can only choose systems that are already working, then if a biological system cannot be produced gradually it would have to arise as an integrated unit, in one fell swoop, for natural selection to have anything to act on." P647, Behe, Michael, Darwin's Black Box, at 39, Free Press (1996). P718, at 694. o [289]66. Professor Behe admitted in Reply to My Critics that there was a defect in his view of irreducible complexity because, while it purports to be a challenge to natural selection, it does not actually address "the task facing natural selection." P718, at 695. Specifically, Behe explained that "[t]he current definition puts the focus on removing a part from an already-functioning system," but "[t]he difficult task facing Darwinian evolution, however, would not be to remove parts from sophisticated pre-existing systems; it would be to bring together components to make a new system in the first place." P718, at 695. In that article, Professor Behe wrote that he hoped to "repair this defect in future work," P718, at 695, but he never has. [290]22:61-65. This admitted failure to properly address the very phenomenon that irreducible complexity purports to place at issue natural selection is a damning indictment of the entire proposition. o [291]67. Dr. Miller and Dr. Padian explained that Professor Behe's concept of irreducible complexity depends on ignoring ways in which evolution is known to occur. Behe was adamant that in his definition of irreducible complexity when he says a precursor "missing a part is by definition nonfunctional," what he means is that it won't function in the way the system functions when all the parts are present for example, in the case of the bacterial flagellum, as a rotary motor. [292]19:88. He excludes, by definition, the possibility that a precursor functioned in some other way for example, in the case of the bacterial flagellum, as a secretory system. [293]19:88-95. o [294]68. This qualification on what is meant by "irreducible complexity" renders it meaningless as a criticism of evolution. [295]3:40 (Miller). As Dr. Padian described it: "Irreducible complexity on its face is a simple statement about a machine or some kind of structure that has several parts. If you take away one of those parts, then it stops functioning. Well, any 8-year-old with a broken bicycle chain knows that he can't ride around anymore with a broken bicycle chain, if that part is broken it's not going to work. No one's got a Nobel prize for that proposition. This only makes sense in the context of intelligent design when irreducible complexity is invoked as a way to assert that no structure could have evolved by natural means." [296]17:44. o [297]69. In fact, the theory of evolution has a well-recognized, well- documented explanation for how systems with multiple parts could have evolved through natural means, namely, exaptation. Exaptation means that some precursor of the subject system had a different, selectable function before experiencing the change or addition that resulted in the subject system with its present function. [298]16:146-48 (Padian). For instance, Dr. Padian identified the evolution of the mammalian middle ear bones from what had been jawbones as an example of this process. [299]17:6-17. The existence of feathers for other purposes in flightless dinosaurs is another example. [300]17:131-45. Even Professor Minnich freely admitted that bacteria living in soil polluted with DNT on an U.S. Air Force base had evolved a complex, multiple-protein biochemical pathway by exaptation of proteins with other functions ([301]38:71) ("This entire pathway didn't evolve to specifically attack this substraight [substrate], all right. There was probably a modification of two or three enzymes, perhaps cloned in from a different system that ultimately allowed this to be broken down.") By defining irreducible complexity in the way he has, Professor Behe attempts to exclude the phenomenon of exaptation by definitional fiat. He asserts that evolution could not work by excluding one important way that evolution is known to work. o [302]70. The National Academy of Sciences has rejected Professor Behe's claim for irreducible complexity, using this same reasoning. "[S]tructures and processes that are claimed to be "irreducibly" complex typically are not on closer inspection. For example, it is incorrect to assume that a complex structure or biochemical process can function only if all its components are present and functioning as we see them today. Complex biochemical systems can be built up from simpler systems through natural selection. Thus, the "history" of a protein can be traced through simpler organisms. Jawless fish have a simpler hemoglobin than do jawed fish, which in turn have a simpler hemoglobin than mammals. *** The evolution of complex molecular systems can occur in several ways. Natural selection can bring together parts of a system for one function at one time and then, at a later time, recombine those parts with other systems of components to produce a system that has a different function. Genes can be duplicated, altered, and then amplified through natural selection. The complex biochemical cascade resulting in blood clotting has been explained in this fashion." P192, at 22. o [303]71. Professor Behe has applied irreducible complexity only to a few select systems: the bacterial flagellum, the blood-clotting cascade and the immune system. As discussed below, Professor Behe has admitted there are no peer-reviewed articles arguing for the irreducible complexity of the bacterial flagellum, the blood-clotting cascade and the immune system, or any other purportedly irreducibly complex system. o [304]72. Because it is only a negative argument against evolution, irreducible complexity, unlike intelligent design, is testable, by showing that there are intermediate structures, with selectable functions, that could have evolved into the allegedly irreducibly complex systems. [305]2:15-16 (Miller). The fact that this negative argument is testable does not make the argument for intelligent design testable. [306]2:15 (Miller); [307]5:39-39 (Pennock). o [308]73. Dr. Miller presented evidence, based on peer-reviewed studies, that the biochemical systems claimed to be irreducibly complex by Professor Behe were in fact not so. [309]2:21-36. o [310]74. Dr. Miller pointed to peer-reviewed studies that identified a possible pre-cursor to the bacterial flagellum, a subsystem that was fully functional, namely, the Type-III Secretory System. [311]2:8-20; P854.23-854.32. (on bacterial flagellum). Professor Minnich admits that there is serious scientific research on the question of whether the bacterial flagellum evolved into the Type-III Secretory System, the Type-III Secretory System into the bacterial flagellum, or they both evolved from a common ancestor, and none of this research or thinking is considering intelligent design. ([312]38:12-16). He testified about this research: "we're looking at the function of these systems and how they could have been derived one from the other. And it's a legitimate scientific inquiry." ([313]38:16). He also testified that "I have no idea in terms of how it came about. I just look at the structure. And it has the signature of irreducible complexity and design. It's a true rotary engine. I just come back to that. It doesn't say anything about where it came from, when it was made, or who was involved in it, or what was involved in it." [314]38:16. o [315]75. Dr. Miller demonstrated that the alleged irreducible complexity of the blood-clotting cascade has been disproven by peer-reviewed studies going back to 1969, which showed that dolphins' and whales' blood clots despite missing a part of the cascade, a study that was confirmed by molecular testing in 1998. [316]1:122-29; P854.17-854.22. More recently, scientists published studies showing that in puffer fish, blood clots despite the cascade missing not only one, but three parts. [317]1:128-29. In sum, scientists in peer-reviewed publications have refuted Behe's prediction about the alleged irreducible complexity of the blood-clotting cascade. Professor Behe tried to elide this compelling evidence by redefining the blood clotting system. (Behe) [318]20:26-28. Cross-examination revealed this to be an argument of convenience designed to avoid peer-reviewed scientific evidence that falsifies his argument, not a scientifically warranted redefinition. (Behe) [319]22:112-125. o [320]76. Dr. Miller also presented peer-reviewed studies refuting Professor Behe's claim that the immune system was irreducibly complex. [321]2:21-36; P854.33-854.41. Professor Behe wrote in Darwin's Black Box not only that there were no natural explanations at the time, but that in fact natural explanations were impossible: "As scientists, we yearn to understand how this magnificent mechanism came to be, but the complexity of the system dooms all Darwinian explanations to frustration. Sisyphus himself would pity us." P647, at 139; [322]2:26-27 (Miller). Professor Behe argued that scientists should not even bother to investigate. [323]2:27 (Miller). However, scientists did not heed Professor Behe's admonition, and, between 1996 and 2005, various studies confirmed each element of the evolutionary hypothesis explaining the origin of the immune system. [324]2:31 (Miller). o [325]77. On cross-examination Professor Behe was questioned about his 1996 claim that science would never find an evolutionary explanation for the immune system. He was confronted with the fifty-eight peer-reviewed publications, nine books and several immunology text-book chapters about the evolution of the immune system, P256, 280, 281, 283, 747, 748, 755 and 743, and he insisted that this was still not sufficient evidence of evolution it was "not good enough." [326]23:19. o [327]78. This evidence demonstrates that the intelligent design argument depends on setting a burden of proof for the theory of evolution that is scientifically unreasonable. o [328]79. As a further example, the test for intelligent design proposed by both Professors Behe and Minnich is to grow the bacterial flagellum in the laboratory. P718, [329]18:125-127. But nobody inside or outside the intelligent-design movement, including Behe and Minnich, has conducted this test. [330]22:102-06 (Behe). Professor Behe admitted that the proposed test could not approximate real world conditions. [331]22:107-110. And even if it could, it would be merely a test of evolution, not design, [332]2:15 (Miller), a point conceded by Professor Minnich. [333]38:82 ("it's not a test of ID, it's a test of evolution"). o [334]80. In summary, Professor Behe's claim for irreducible complexity has been refuted in peer-reviewed research papers and has been rejected by the scientific community. [335]17:45-46 (Padian); [336]3:99 (Miller). Moreover, even if irreducible complexity had not been rejected, it still does not support intelligent design. [337]2:15, [338]2:35-40 (Miller); [339]28:63-66 (Fuller ID doesn't follow logically). Irreducible complexity is merely a test for evolution, not design. [340]2:15 (Miller). o [341]81. Defendants' protestations notwithstanding, the Court finds that there is no testable, positive argument for intelligent design. Neither Pandas nor any witness in this trial has proposed a scientific test for design. [342]2:39 (Miller). + [343]D. The "Positive Argument" for Design is Unscientific and Illogical o [344]82. The purportedly positive argument for design, espoused repeatedly by Professors Behe and Minnich, is encompassed in the phrase, "purposeful arrangement of parts." [345]18:91 ("I discussed this in my book, Darwin's Black Box, and a short description of design is shown in this quotation from Chapter 9. Quote, What is design? Design is simply the purposeful arrangement of parts. When we perceive that parts have been arranged to fulfill a purpose, that's when we infer design."); [346]19:55 ("the positive argument for it is the purposeful arrangement of parts, as I have described."); [347]19:102 ("...I want to re-emphasize to say that it is important to keep in mind that the positive inductive argument for design is in the purposeful arrangement of parts."). o [348]83. Professor Behe summarized the argument as follows: We infer design when we see parts that appear to be arranged for a purpose. The strength of the inference is quantitative; the more parts that are arranged, and the more intricately they interact, the stronger is our confidence in design. The appearance of design in aspects of biology is overwhelming. Since nothing other than an intelligent cause has been demonstrated to be able to yield such a strong appearance of design, Darwinian claims notwithstanding, the conclusion that the design seen in life is real design is rationally justified. [349]18:90-91 (Behe slides, at 7); [350]18:109-110. See also, [351]37:50 (Minnich). o [352]84. This is not a new argument, but a restatement of the Reverend William Paley's argument applied at the cell level. [353]1:6-7 (Miller); [354]38:44, 57 (Minnich). Minnich, Behe and Paley reach the same conclusion that complex organisms must have been designed using the same reasoning, except that Professors Behe and Minnich refuse to identify the designer, whereas Paley inferred from the presence of design that it was God. Id. o [355]85. This inductive argument is not scientific. [356]2:40 (Miller). As Professor Behe admitted, it can never be ruled out. [357]22:101. See also, [358]3:99 (Miller). o [359]86. The assertion that design of biological systems can be inferred from the "purposeful arrangement of parts" is based on an analogy to human design. According to Professor Behe, because we are able to recognize design of artifacts and objects, that same reasoning can be employed to determine biological design. [360]18:116-17; [361]23:50. o [362]87. Professor Behe testified that the strength of an analogy depends on the degree of similarity entailed in the two propositions. [363]20:69. If this is the test, intelligent design completely fails. o [364]88. Unlike biological systems, human artifacts do not live and reproduce over deep time. They are non-replicable; they don't undergo genetic recombination; and they are not driven by natural selection. [365]1:131-33 (Miller); [366]23:57-59 (Behe). This difference is noted in one of the articles relied upon by Professor Minnich, rejecting the analogy between machines and biological systems, because "[m]achines are not made of parts that continually turn over, renew. The organism is . . . . the stability of an organism lies in resilience, the homeostatic capacity to reestablish itself." D251, at 176. o [367]89. For human artifacts, we know the designer's identity (human), the mechanism of design (because we have experience based on empirical evidence that humans can make such things), and many other attributes such as the designer's abilities, needs and desires. Id. [368]1:131-33 (Miller); [369]23:63 (Behe) [370]5:55-58 (Pennock). With intelligent design, proponents say that they refuse to propose hypotheses on the designer's identity, do not propose a mechanism, and he, she, it (or they) has never been seen. Professor Minnich agreed that in the case of human artifacts and objects we know who the designer is and what the capacities of humans are, but that we don't know any of those attributes for the designer of biological life. [371]38:44-47. Professor Behe agreed that for human design we know the designer and its attributes (needs, desires, abilities, limitations, materials, technology), [372]23:61-70; and we have a baseline for human design that does not exist for design of biological systems, [373]23:70-73. Professor Behe's only response to these insurmountable points of disanalogy was that the inference still works in science fiction movies. [374]23:73. o [375]90. Ultimately, the only attribute of design that biological systems share with human artifacts is their complex appearance --if it looks complex or designed, it must have been designed. [376]23:73 (Behe). Taken to its logical conclusion, this "positive" design argument applies to every complicated thing we see in the universe (tornadoes, the rings of Saturn, the complex ice crystals in snowflakes, etc.), a result whereby natural explanations could be replaced in every instance by "design" arguments. But as Professor Behe conceded about the long discarded geocentric theory, scientific propositions based entirely on appearance can be very wrong. [377]19:5-6 (Behe); see also [378]16:74 (Padian). o [379]91. This inference to design based on the appearance of a "purposeful arrangement of parts" is a completely subjective proposition, determined in the eye of each beholder. Both Behe and Minnich asserted that there is a quantitative aspect to the inference, but on cross-examination admitted there is no quantitative criteria for determining the degree of complexity or number of parts that bespeak design, rather than a natural process. [380]23:50 (Behe); [381]38:59 (Minnich). In fact, in the entire trial there was only one piece of evidence generated by defendants that addressed the strength of the intelligent-design inference: the argument is less plausible to those for whom God's existence is in question, and is much less plausible for those who deny God's existence. Michael J. Behe, Reply to My Critics, Biology and Philosophy100. 16:685-709, 2001. P718, at 705. o [382]92. This purported positive argument for intelligent design does not satisfy the ground rules of science, which require testable hypotheses based on natural explanations. [383]3:101-03 (Miller). Intelligent design relies on forces acting outside the natural world, forces that we cannot see, replicate, control or test, which have produced changes in this world. [384]3:101 (Miller). While such forces may exist, just as it may be true that God arranged the victory of the Red Sox in the World Series, they are not testable by science and, therefore, cannot qualify as part of the scientific process or as a scientific hypothesis or theory. [385]3:101-02 (Miller). + [386]E. Intelligent Design's Claims Against Evolution are Based on Discredited Science o [387]93. Intelligent design proponents support their argument that evolutionary theory cannot account for life's complexity by pointing not only to real gaps in scientific knowledge which indisputably exist in all scientific theories but also by misrepresenting well-established scientific propositions. [388]1:112, [389]1:122, [390]1:136-37 (Miller); [391]16:74-79, [392]17:45-46 (Padian). o [393]94. Before discussing defendants' claims about evolution in greater detail, it must be noted that the overwhelming number of scientists, as reflected by every scientific association that has spoken to the matter, have rejected intelligent-design proponents' challenge to evolution. For example, NAS has adopted the position that: # [394](a) "Evolution is the central organizing principle that biologists use to understand the world. To teach biology without explaining evolution deprives students of a powerful concept that brings great order and coherence to our understanding of life." P194, at 3. # [395](b) "Those who oppose the teaching of evolution in public schools sometimes ask that teachers present `evidence against evolution.' However, there is no debate within the scientific community over whether evolution occurred, and there is no evidence that evolution has not occurred. Some of the details of how evolution occurs are still being investigated. But scientists continue to debate only the particular mechanisms that result in evolution, not the overall accuracy of evolution as the explanation of life's history." Id. at 4. o [396]95. Dr. Kenneth Miller, plaintiffs' expert in biology, explained evolutionary theory. Dr. Miller is a widely-recognized biology professor at Brown University. His research focus is cell-biology. P214 (curriculum vitae). He has written university-level and high-school-biology text books. [397]1:40-47. Indeed, his high school text, which was selected for use in Dover, is used by about 35% of the school districts in the nation. [398]1:44. He is the former editor of several prominent cell biology journals, [399]1:37-38, and serves as the science advisor to the PBS News Hour and formerly as an advisor to the PBS science program NOVA. P214. o [400]96. Dr. Miller explained that evolution is the process of change over time. [401]1:70. It consists of three core propositions. The first is that life in the past was different from today, and that it indeed has changed over time. [402]1:71. The second is the principle of common descent, which is that living things are united by common ancestry. Id. The third is that changes over time and common descent are driven by forces, principles and actions observable in the world today. Id. There are actually many forces and processes, but they are typically united under the term "natural selection. Id. o [403]97. Charles Darwin's contribution to evolution was to propose a plausible, workable and ultimately testable mechanism for the process that drives adaptive change over time, and that process is natural selection. [404]1:72-73. o [405]98. According to Dr. Miller, since Darwin's time, modern-day genetics and molecular biology have "provided dramatic confirmation" of Darwin's theory. [406]1:74-75.^[407]3 o [408]99. The National Academy of Sciences is in accord with Dr. Miller's testimony that 20^th-century developments in genetics and molecular biology actually support evolutionary theory: "The confirmation of Darwin's ideas about `descent with modification' by this recent molecular evidence has been one of the most exciting developments in biology this century." P194, at 42. The NAS report continues by saying that, "These molecular studies [referring to the human genome project] are powerful evidence for evolution." Id. o [409]100. In testimony that was unrebutted, Dr. Miller testified that evolution, including common descent and natural selection, are "overwhelmingly accepted" by the scientific community, and that every major scientific association agrees. [410]1:94-100. See, e.g., P194, at 16 (NAS, [411]Teaching about Evolution). ("The concept of evolution through random genetic variation and natural selection makes sense of what would otherwise be a huge body of unconnected observations. It is no longer possible to sustain scientifically the view that the living things we see today did not evolve from earlier forms or that the human species was not produced by the same evolutionary mechanisms that apply to the rest of the living world.") o [412]101. Despite the scientific community's overwhelming support for evolution, defendants and intelligent-design proponents insist that evolution is unsupported by empirical evidence. Plaintiffs' science experts, Drs. Miller and Padian, explained how intelligent-design proponents generally, and Pandas specifically, distort and misrepresent scientific knowledge in making the anti-evolution argument. + [413]F. Of Pandas And People Presents Discredited Science o [414]102. Defendants hold out Of Pandas and People as representative of the intelligent-design argument. The statement read to students expressly asserts this point: "Of Pandas and People is available for students who might be interested in gaining an understanding of what intelligent design actually involves." P124, 131. Plaintiffs' experts agreed that Pandas is representative of intelligent design. [415]16:83 (Padian); [416]1:107-08 (Miller). o [417]103. Many of the arguments against evolutionary theory in Of Pandas and People involve paleontology, which studies the life of the past and the fossil record. [418]16:46-47 (Padian). o [419]104. Professor Kevin Padian was the only testifying expert witness with any expertise in paleontology. Dr. Padian's qualifications are impeccable, with thirty years of research on the evolution of flight and locomotion in flying reptiles, publication of nearly one hundred peer-reviewed articles, editorships of several major scientific publications, curatorship of the Museum of Paleontology at the University of California at Berkeley, and co-editor and author of the Encyclopedia of Dinosaurs. [420]16:42-59 (Padian); P292 (curriculum vitae). o [421]105. None of defendants' testifying experts have any expertise in paleontology or the fossil record. [422]17:16-17 (Padian). Furthermore, there is no evidence that either defendants' testifying experts or any other intelligent-design proponents, including Pandas' authors, have such expertise since they have not published peer-reviewed literature or presented at scientific conferences on paleontology or the fossil record. [423]17:15-16 (Padian). Professor Behe admitted that he has no basis to vouch for Pandas' representation of the fossil record. [424]21:44-45. o [425]106. Therefore, Dr. Padian's testimony is uncontested. o [426]107. Through a series of demonstrative slides prepared based on peer-reviewed scientific literature, Dr. Padian showed how Of Pandas and People systematically distorts and misrepresents established and important evolutionary principles. For instance, Pandas misrepresents the "dominant form of understanding relationships" between organisms, namely, the tree of life, represented by classification determined via the method of cladistics. [427]16:87-97; demonstrative P855.6-855.19. Pandas also misrepresents "homology," the "central concept of comparative biology," that has for hundreds of years allowed scientists to compare comparable parts among organisms for classification purposes. [428]17:27-40; P855.83-855.102. And Pandas fails to address at all the well-established biological concept of exaptation, which involves a structure changing function, like fish fins evolving fingers and bones to become legs for weight-bearing land animals, dinosaur forelimbs becoming bird wings, and the front and back legs of primitive hoofed mammals becoming whale flippers and vestigial limbs, respectively. [429]16:146-48. Dr. Padian testified that intelligent-design proponents do not address exaptation because they deny that organisms change function, a view necessary to support the abrupt-appearance argument. Id. o [430]108. Dr. Padian's unrebutted testimony also demonstrates that Pandas distorts and misrepresents evidence in the fossil record about pre-Cambrian-era fossils, [431]16:107-17; P855.25-855.33 about the evolution of fish to amphibians, [432]16:117-131; P855.34-855.45, the evolution of small carnivorous dinosaurs into birds, [433]16:131-45; P855.46-855.55, the evolution of the mammalian middle ear, [434]17:6-9 (Padian); P855.56-866.63, and the evolution of whales from land animals. [435]17:17-27; P855.64-855.82. o [436]109. NAS publications are in agreement that Pandas' misrepresents the alleged gaps in the fossil record. In fact, fossil discoveries since Darwin's time have confirmed his evolutionary theories: "At the time of Darwin, there were many unsolved puzzles, including missing links in the fossil record between major groups of animals. Guided by the central idea of evolution, thousands of scientists have spent their lives searching for evidence that either supports or conflicts with the idea. For example, since Darwin's time, paleontologists have discovered many ancient organisms that connect major groups such as [437]Archaeopteryx between ancient reptiles and birds, and Ichthyostega between ancient fish and amphibians. By now, so much evidence has been found that supports the fundamental idea of biological evolution that its occurrence is no longer questioned in science." P194, P39. o [438]110. Dr. Miller testified that Pandas' treatment of biochemical similarities between organisms is "inaccurate and downright false." [439]1:112 (Miller). He explained, through a series of demonstrative slides based on peer-reviewed publications, how Pandas misrepresents basic molecular biology concepts to advance the design theory. For example, he testified how Pandas misinforms readers on the standard evolutionary relationships between different types of animals, [440]1:113-17; P854.9-854.16, a distortion Professor Behe affirmed. [441]23:35-36. Dr. Miller also refuted Pandas' claim that evolution cannot account for new genetic information. Dr. Miller pointed to more than three-dozen peer-reviewed-scientific publications showing the origin of new genetic information by evolutionary processes. [442]1:133-36; P245. In sum, Dr. Miller testified that Pandas misrepresents molecular-biology and genetics principles, and the current state of scientific knowledge in those areas, in order to teach readers that common descent and natural selection are not scientifically sound. [443]1:139-42. For instance, Pandas reads: "Adherents of intelligent design assume that in the beginning all basic types of organisms were given a set of genetic instructions that harbored variation but were resilient and stable." P11, at 65; [444]1:139-40. This is an argument for special creation that has no support in the scientific literature. [445]1:140-42. + [446]G. Intelligent Design Has Not Produced Peer Reviewed Articles or Research o [447]111. In sum, the one textbook to which the Dover policy directs students contains badly flawed and scientifically refuted science. These flaws extend to intelligent-design arguments writ large, as discussed in the section on irreducible complexity, supra. o [448]112. Yet another measure of how intelligent design has failed to demonstrate scientific warrant is the complete absence of peer-reviewed publications supporting the concept. Peer review is "exquisitely important" in the scientific process. [449]1:67 (Miller). Peer review is a way for scientists to write up their empirical research and to share the work with fellow experts in the field, opening up the hypotheses to study, testing and criticism. [450]1:66-69 (Miller). Peer review helps to ensure that research papers are scientifically accurate, meet the standards of the scientific method, and are relevant and interesting to other scientists in the field. [451]1:39-40 (Miller). o [452]113. Peer review involves scientists submitting a manuscript to a scientific journal in the field. The journal editors will solicit critical reviews from other experts in the field. These experts decide whether the scientist has followed proper research procedures, employed up-to-date methods, considered and cited relevant literature, inferred or speculated more than appropriate, and, generally, whether the researcher has employed sound science. The editor collects the reviewers' comments and either accepts the submission, indicates changes that must be made to allow acceptance, or rejects it. More respected journals have high rejection rates, some as high as 90%. Experts repeatedly testified that the most respected journals are Nature and Science, and the Proceedings of the National Academy of Science, with more specialized publications in the various disciplines, such as Journal of Vertebrate Paleontology and Cell, having smaller circulations but also commanding wide respect. [453]16:49-53 (Padian); [454]1:39-40, 67-69 (Miller). o [455]114. Defendants' expert, Professor Behe, recognizes the importance to science of the peer review process. [456]22:25. Behe has written that science must "publish or perish." [457]22:19-21, citing P647, Michael Behe, Darwin's Black Box, at 185 (1996). Professor Minnich agreed that it is important to publish in peer-reviewed journals so scientific peers can evaluate the evidence and conclusions. [458]38:32. o [459]115. Books, even those published by academic presses, are not subject to the same rigorous peer review that is employed at the most prestigious scientific journals. [460]2:3-4 (neither Miller's book, Find Darwin's God, nor Behe's Darwin's Black Box were peer reviewed "by standards of science"), [461]2:79-81 (Miller). Despite Professor Behe's unsupported assertion that Darwin's Black Box was peer-reviewed, plaintiffs undermined this claim on cross examination. Dr. Behe admitted that the book contained no original research, [462]22:23, and he had no explanation for a published statement by one claimed-peer reviewer, Dr. Atchison, that he never read the book before recommending publication. [463]22:26-32. Simply because a scientist publishes a book does not automatically tra orm the subject matter into science; it is still a question of how the idea is received by the scientific community and whether it ultimately is accepted in peer-reviewed publications. [464]16:55-56 (Padian). o [465]116. Intelligent design is not supported by any peer-reviewed research, data or publications. Both Doctors Padian and Forrest testified that recent literature reviews of scientific and medical-electronic databases disclosed no studies supporting a biological concept of intelligent design. [466]17:42-43 (Padian); [467]11:32-33 (Forrest). o [468]117. Professor Behe, under cross examination, admitted that, "There are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred." [469]22:22-23 (Behe). He also acknowledged that there were no peer-reviewed papers supporting his claims that complex molecular systems, like the bacterial flagellum, the blood- clotting cascade and the immune system, were intelligently designed. [470]21:61-62 (complex molecular systems), [471]23:4-5 (immune system), and [472]22:124-25 (blood-clotting cascade). o [473]118. Similarly, there are no peer-reviewed articles supporting Professor Behe's argument that certain complex molecular structures are "irreducibly complex." [474]21:62, [475]22:124-25. The one article referenced by Professors Behe and Minnich, as supporting intelligent design, Behe and Snoke, "Simulating evolution by gene duplication of protein features that require multiple amino acid residues" Protein Science, P721, does not mention either irreducible complexity or intelligent design. Professor Behe also admitted that this study did not rule out many known evolutionary mechanisms and that the research actually might support evolutionary pathways if a biologically realistic population size were used. [476]22:41-55; P756. o [477]119. Besides failing to produce papers in peer-reviewed journals, intelligent design also features no scientific research or testing. [478]28:114-115 (Fuller); [479]18:22-23, 105-106 (Behe). Intelligent design is now nearly two-decades old, and it has produced no scientific research. [480]17:45 (Padian). o [481]120. Because intelligent design has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community, it cannot be adjudged a valid, accepted scientific theory. + [482]H. Conclusion to Science Section o [483]121. The Court concludes that while intelligent design arguments may be true a proposition on which the Court takes no position the theory is not science. Moreover, because intelligent design is ultimately predicated on a supernatural creator, the theory is religious, a finding required by the Supreme Court's holding in [484]Edwards v. Aguillard.