The BioLogos Foundation: November 2009 Archives

Every Friday, "Science and the Sacred" features an essay from a guest voice in the science and religion dialogue. This week's guest entry was written by David Opderbeck. Opderbeck is a professor of law at Seton Hall University School of Law and serves in the school's Gibbons Institute of Law, Science & Technology. His blog Through a Glass Darkly addresses issues in theology and the science and religion dialogue. This is a follow-up to his post "In Defense of Dover".

This post will discuss how the law interacts with "science." The interaction of law and science is a vast and fascinating topic. I can mention here only some brief highlights of a handful of the important issues. As part of this discussion, I'll offer some thoughts about Judge Jones' treatment of "science" in the Kitzmiller v. Dover Area School District intelligent design case. At the end of the post, I'll suggest some resources for further reading on the relationship between law and science.

The Gatekeeper Function

One of the most significant ways in which law and science relate is in the use of "expert" testimony. Federal Rule of Evidence ("FRE") 702 states that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. . . .

For example, in a product liability case, engineering experts might testify as to the soundness of the design of the product at issue, and medical experts might testify as to the nature and extent of the plaintiff's injuries.

When a party seeks to introduce expert testimony, the court must serve as a "gatekeeper" over what can be presented to the jury. According to FRE 702, when the court exercises this gatekeeper function, it must ensure that "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." These criteria were grafted into the FRE as a result of the Supreme Court's opinions in Daubert v. Merrill Dow Pharmaceuticals and Kuhmo Tire v. Carmichael, in which the Court discussed the gatekeeping functions of trial courts with respect to expert testimony.

The Daubert standard represents both a pragmatic and an epistemological limitation on the adversarial trial process. The scope and propriety of this limitation has been hotly debated among legal scholars, lawyers and judges. It seems clear, however, that there must be some limits on what can count as "expert" testimony, and that the trial courts, in their traditional role as evidentiary gatekeepers, must to some extent determine what can be presented to juries as "scientific" evidence. We lack the judicial and social resources to turn every trial into a perfect search for the truth. The best we can do is come as close as possible to the truth as the time, cost and functional limitations of the judicial system can accommodate. This means there must be some limits on what testimony can be presented under the "expert" umbrella.

Gatekeeping and Kitzmiller

Supporters of Judge Jones' approach in the Kitzmiller case suggest that a similar gatekeeping function is important with respect to public education. Without some demarcation of what can be taught as "science" in the public schools, aren't we opening the floodgates to the teaching of all sorts of pseudo-science, such as astrology and young earth creationism? I think this is a valid concern. For this and other reasons, I personally don't agree with the "teach the controversy" approach promoted by many ID advocates. If I were to serve on my local school board, I would not vote in favor of introducing ID materials into the science curriculum, primarily because I don't believe the ID program has generated sufficient results to reach the public schools. Like the courts, the public schools lack the time and resources to address views that fall far outside the scientific mainstream.

In my view, however, when the issue is the local public school curriculum, the political level at which such resource allocation decisions should be made ordinarily is that of the local school board, in conversation with the academic community and under the broad oversight of state and national standards-setting bodies. The judicial scientific gatekeeping role usually should relate only to traditional judicial functions, such as what sorts of evidence can be considered by juries.

What if a local school board gets a curricular decision "wrong" and there is no improper religious purpose or other illegality? In my view, that concern ordinarily should be addressed through the process of open debate and political action. The reality is that local political bodies sometimes make "bad" decisions that are not unlawful or unconstitutional. The possibility of bad local decisions is one of the costs of democratic governance. It's a cost that usually is mitigated by the self-correcting processes of democracy. Concerned parents remain free to elect new local officials.

In the relatively rare circumstances in which the local political body acts for clearly improper religious purposes (such as the Kitzmiller case and the McLean v. Arkansas Board of Education and Edwards v. Aguillard cases), the courts can remedy those actions under the establishment clause of the first amendment to the Constitution. The primary inquiry in such cases, however, is not to ask if it is "science", Even if this demarcation question could be answered definitively in a philosophical sense (which I believe is doubtful at best), this still would not necessarily resolve whether the governmental decision involved an improper religious purpose or entanglement.

"Science" and "religion" use different methodological tools and varying rules of discourse, but both disciplines inquire into the same ultimate reality. It is therefore entirely possible for interdisciplinary approaches to exist that are neither purely "science" nor purely "religion." In fact, much of today's serious faith-and-science scholarship relies on this notion of interdisciplinarity. (For a discussion of this notion, see Alister McGrath, A Scientific Theology: Reality (Eerdmans 2002)). There is nothing facially unconstitutional about exploring such interdisciplinary approaches in a public educational setting.

This leads to my primary criticism of the Kitzmiller decision. I don't believe Judge Jones should have ventured a broad definition of "science" in the Kitzmiller case, as though such an exercise necessarily ends the discussion of constitutionality. Under the applicable standards for establishment clause cases, the proper inquiry is into purposes and effects: was the government's purpose "secular" and was the primary effect of the government's decision to advance or inhibit religion or to produce an excessive entanglement of government and religion? Whether an idea is labeled "religion" or "science," in itself, is irrelevant to the constitutional question. "Religion" is a constitutionally proper subject of study in the public schools, provided that the purpose and effect of that study is not sectarian.

Rather than wading into the deep waters of defining "science" over against "religion," then, Judge Jones should have focused primarily on the purposes of the Dover school board, which clearly were to proselytize for a particular kind of creationism, rather than to explore interdisciplinary approaches to science and religion generally.

This analysis, of course, begs one of the big questions in the ID debate: is ID inherently entangled with religious purposes? Should efforts to introduce ID into the public school science curriculum always be met with skepticism under the establishment clause?

The looming presence of this question is one of the key reasons I don't believe Judge Jones played the role of "activist judge" in Kitzmiller, even though I am critical of the opinion. The question whether ID, like "creation science," is inherently religiously motivated, is a live concern, and was extensively briefed and argued to the court by both sides. In order to address the question of religious motivation, the court could not have avoided some consideration of the essential nature of ID theory.

In my view, however, there is a significant qualitative and quantitative difference between giving an issue some consideration and making it the central issue in the case. The court could easily have said something like this, and nothing more than this, on the demarcation issue:

The question of ID theory's scientific merits, and indeed whether ID theory is properly considered 'science,' is hotly disputed by the parties. The court finds, after hearing extensive testimony, that the mainstream scientific community generally does not consider ID theory to be valid science. Combined with the clear overriding religious purposes of the school board members, this finding establishes that there was no valid secular purpose for the school board's actions and that the proposed curriculum would result in excessive government entanglement with religion.

In this context, the Judge Jones' effort to define "science" in a broad sense was unnecessary, but not "activist." In any event, the term "activist judge" generally sheds far more heat than light on the complex nature of the judicial function.

What, then, should we make of the link between ID theory and religion? I'll address this in my next post. I'll also offer my views about ID theory as a form of "natural theology."

Some general resources on the intersection of science and law:

• Robin Cooper Feldman, The Role of Science in Law (Oxford Univ. Press 2009)
• Carl F. Cranor, Toxic Torts: Science, Law, and the Possibility of Justice (Cambridge Univ. Press 2006)
• David L. Faigman, Laboratory of Justice: The Supreme Court's 200-year Struggle to Integrate Science and the Law (Times Books 2004)
• Sheila Jasanoff, Science at the Bar: Law, Science and Technology in America (Harvard Univ. Press 1995)

Though originally scheduled to take place today, volunteers gathered yesterday on college campuses across the United States to distribute free copies of Darwin's seminal work On the Origin of Species. The volumes included one extra item not found in the original book: an introduction by creationist Ray Comfort, which offers arguments against the theory of evolution. Among his challenges are the common ad hominem attacks against Darwin: accusing him of being a racist and sexist; assertions that Darwin's theory is directly responsible for eugenics, euthanasia, infanticide, and Hitler's philosophy; claims about the lack of transitional fossils; claims that DNA and other complex biological structures could not possibly have emerged via evolution; and even the claim that evolution violates the Second Law of Thermodynamics. He also implies that one must reject evolution to be a good Christian.

The National Center for Science Education has already created their own online resource -- The Don't Diss Darwin Institute -- to counter the arguments used by Comfort in the introduction. The site offers a detailed analysis of Comfort's introduction along with explanations for why his challenges don't stand up. They also provide a printable pamphlet and bookmark to help "correct" Comfort's materials. The NCSE are not the only ones tackling Comfort's "edited" Origins, however. Christian and evolutionary biologist Ken Miller has also released a pamphlet addressing the preface that was included in the distributed copies.

Though we see no need to compile a pamphlet of our own, the BioLogos Web site and Science and the Sacred have already addressed many of Comfort's arguments against evolution:

• Karl Giberson's post "Who Cares About Darwin?" looks at why ad hominem attacks against Darwin do nothing to disprove the validity of his theory, and addresses the supposed "link" between Darwin and Hitler.
  
• Our question "How is BioLogos different from Darwinism or Social Darwinism?" explains why the scientific theory of evolution is not the same as Social Darwinism -- a gross misapplication of the theory. The two do not go hand-in-hand.
• Our question "What Does the Fossil Record Show?" gives several examples of transitional fossils, dismissing the idea that no transitional fossils have been found.
• Our question "How can Evolution Account for the Complexity of Life on Earth Today?" and our series of blogs "On Reducing Irreducible Complexity" show why many so called examples of "irreducible complexity" can be explained via evolution, and why the idea of irreducible complexity is philosophically unsound.
• Our question "Does Thermodynamics Disprove Evolution?" address this commonly used but scientifically flawed challenge to evolution.
• Finally, our Questions section, as well as many of our suggested books, challenge the myth that one must choose between Christianity and evolution.

Ultimately, despite its unique pairing alongside Darwin's work, Comfort's new preface adds nothing new to the dialogue on creation and evolution.  Comfort would have us believe that science and faith don't mix.  For a different perspective, have a look at the upcoming statement generated by the participants at the recent BioLogos workshop.  
 

(Image courtesy of Wired.com)

How many times have you heard someone ask the question: "Have scientists ever actually observed the formation of a new species?" Our standard answer is that speciation is an event that occurs over thousands of years, one would not expect to be able to observe it. However, a fascinating paper in the journal Proceedings of the National Academy of Sciences (PNAS) appeared this past Monday written by Peter and Rosemary Grant -- a husband-and-wife research team who have spent the last 36 years studying Darwin finches on the Galapogos Islands. Never in the history of biology has a single set of scientists so thoroughly studied a group of organisms in their natural environment, following them through the span of multiple decades. The work, outlined in a book we highly recommend, The Beak of the Finch by Jonathan Weiner, has been a masterpiece--science at its very finest. So thorough is their analysis that in this PNAS article they are able to actually demonstrate the key events in the formation of a new species as it occurred before their very eyes. A single species has diverged to become, in essence, two species--they are no longer inter-mating. One would have to follow the organisms for a longer time to see if they become firmly established as two distinct species, but the important point is that as we approach the 150th anniversary of the publication of Darwin's Origin of Species next Tuesday, careful analysis has showed that it is actually possible to observe the key events of speciation. And the events associated with it happened in less than one human lifespan!

The findings describe the mini-evolutionary saga that took place on their island of Daphne Major in the Galapagos chain. The Darwin finches of the Galapagos islands (technically from a family called "tanagers") first provided Darwin with a clear picture of evolutionary divergence, as birds from each island have adapted unique traits to meet the unique conditions of their respective islands. The new species observed by the Grants can be traced back to a medium ground finch (Geospiza fortis) that arrived from a neighboring island in 1981. The bird was "unusually large, especially in beak width and sang an unusual song" (The Grants tape recorded the immigrants song!)

Despite being a newcomer, this ground finch was able to successfully mate with a female from the local island. Together, they produced five sons. However, because young Darwin finches learn their songs from their father, the offspring learned a new variation of the local bird call, a product of the song being mimicked through the voice of their foreign father, similar to a human singing a song in a language they do not know.

Despite this slightly different tune and their unusual size (which they also inherited from their father), this new generation was still able to find mates. However, the Grants theorized that within a few generations, this new lineage would become reproductively isolated from the local population. Sure enough, after four generations when a drought killed off all but a brother and sister of the new lineage, the remaining siblings mated. Their children began to do the same. After three generations of reproductive isolation, the Grants have declared that the birds are now in the "secondary stages" of species formation.

The ultimate future of the newly reproductively isolated group remains to be seen. Will they be out-competed for resources or will genetic problems from the variations in the patriarch and matriarch of the lineage become magnified over time? Perhaps, even, members of this new group will return to the island of their forefather and interbreed with them, leading to even more genetic diversity.

At the very least, the saga of these finches shows that while rarely observed, speciation can occur quickly given the proper circumstances.

Every Friday, "Science and the Sacred" features an essay from a guest voice in the science and religion dialogue. This week's guest entry was written by Peter Enns. Enns is an evangelical Christian scholar and author of several books and commentaries, including the popular Inspiration and Incarnation: Evangelicals and the Problem of the Old Testament , which looks at three questions raised by biblical scholars that seem to threaten traditional views of Scripture. This is the second of his multi-part series on an incarnational model of Scripture.

Models are intellectual constructs that try to account for data. They are ways of putting the pieces together and aim to achieve the greatest degree of explanatory power.

We all have models of reality, whether or not we know it. We all hold to hypotheses and theories (which I will take as roughly synonymous with "model") to explain what we see.

This is also the case for how we interpret the Bible. All of us--from the most ardent Fundamentalist to the most Liberal Christian--construct models to account for the "data." The models that are the most coherent (account for the most data) wind up being the most persuasive. No model is pure and objectively correct. They are all working hypotheses, and as such are also always up for revision.

One model that accounts for why the Bible behaves the way it does is an incarnational model. Simply put, an incarnational model of Scripture is one that expects Scripture to have an unapologetically thorough human dimension analogous to Jesus' complete humanity. Both the human dimension of Scripture and the humanity of Jesus are essential to making them what they are.

If Jesus were less than 100% human, or only appeared to be human, or if his humanity is something that could be dispensed with, he would not be Jesus of Nazareth, and his death and resurrection would be non-sensical. Likewise, if the Bible were a book dropped out of heaven with only a tangential, peripheral participation in the human contexts in which it is written--sort of a divine dictation--it ceases being the Word of God.

I stress an incarnational model because so often, whether knowingly or unknowingly, assumptions are made about the nature of Scripture where the human dimension winds up being something of an embarrassment or scandal. True, many willingly embrace some form of an incarnational model when speaking of less problematic things like how the personalities of biblical writers affect what they say or how their ancient world view would lead them to assume that the sun revolves around the earth.

But that is the easy part. A thoroughly incarnational model is also poised to address some of the more difficult problems that other models of Scripture have not done a good job of handling--such as the challenges posed by Darwin and Mesopotamian literature in the nineteenth century which I mentioned in my last post.

A literalist/historicistic model has not done a good job at all of explaining Genesis, and this has become increasingly clear over the last 150 years. When faced as we are with the strong, even overwhelming, evidence for evolution and the presence of Mesopotamian creation and flood stories that look like what we see in Genesis, it is clear that models are needed that do not force these data into existing models that are ill-suited to handle them.

An incarnational model accounts theologically for why the Bible would speak in such ancient, contextual terms and not in modern ones. An incarnational model presumes a book like Genesis to express itself in ancient conventions. And such an ancient, contextual expression is not an embarrassment but an indication of how willing God is to meet us where we are--a willingness seen most clearly in the incarnate Lord.

In his preface to J. B. Phillips's translation of the New Testament letters into contemporary English, C.S. Lewis articulately addresses this issue of incarnation. Lewis observes that the Greek style of the New Testament betrays writers for whom Greek was not a language at their full command. He writes:

Does this shock us? It ought not to, except as the Incarnation itself ought to shock us. The same divine humility which decreed that God should become a baby in a peasant-woman's breast, and later an arrested field-preacher in the hands of the Roman police, decreed also that He should be preached in a vulgar, prosaic and unliterary language. If you can stomach the one, you can stomach the other. The Incarnation is in that sense an irreverent doctrine: Christianity, in that sense, an incurably irreverent religion. When we expect that it should have come before the World in all the beauty that we now feel in the Authorized Version we are as wide of the mark as the Jews were in expecting that the Messiah would come as an earthly King. The real sanctity, the real beauty and sublimity of the New Testament (as of Christ's life) are of a different sort: miles deeper and further in.

Although the topic here is translation, Lewis's defense of Phillips is easily applicable to our topic. Lewis's point is that those who take offense at the low Greek style of the New Testament have not come to grips with the incarnation. The same holds for those who take offense at the thoroughly encultured, ancient style of the opening chapters of Genesis and expect from it a more explicitly literal, historical style.

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