Attorneys: Pennsylvania Wins First Step in ‘Monkey Trial’ Battle


The Dec. 20 federal-court decision ruling that the teaching of intelligent design is unconstitutional may not have the far-reaching authority of a U.S. Supreme Court decision, but the lead attorney who successfully opposed the Dover Area School District's efforts believes the case has significantly shifted the ongoing debate concerning the teaching of evolution in public schools.

"It certainly doesn't control what courts do treating the issue, but we think it will be very influential and persuasive," said Eric Rothschild, the 38-year-old litigator and partner at the Philadelphia firm of Pepper Hamilton.

The attorney saw two messages in the ruling, which struck down a controversial plan by the school board of Dover, Pa., to refer to intelligent design alongside evolution in high school biology classes.

"It was a biology lesson and a civics lesson," said Rothschild, who lives in Wynnewood. "Hopefully, it will be a cautionary note. [Introducing intelligent-design theory] doesn't help science education, and it creates division."

Rothschild's legal team, which represented a group of concerned parents whose children attend Dover High School, included one other Pepper Hamilton lawyer, along with two constitutional-law experts from the American Civil Liberties Union of Pennsylvania, and Americans United for Separation of Church and State.

'Separating Science and Religion'

The case – Kitzmiller v. Dover Area School District, which was argued in a federal court in Harrisburg from late September to early November – questioned whether the district could require science teachers to read a statement to students stating that "evolution was a theory, not a fact," and refer them to the textbook Of Pandas and People if they wanted a counter view to the work of Charles Darwin.

Echoing the famous 1925 Scopes Monkey Trial, in which a Tennessee science teacher faced criminal charges for teaching evolution, the Dover case turned into an examination of intelligent design – which argues that life is too complex to have evolved by random chance, the way Darwin and modern scientists have described.

"We got to put on the case that we wanted, which was to really put intelligent design on trial with leading scientific, theological and philosophical experts," said Rothschild, who delivered both the opening and closing arguments.

In his decision, Judge John Jones of the U.S. District Court for the Middle District of Pennsylvania found that intelligent design was essentially a repackaging of creationist theory, which holds that God created everything. An earlier Supreme Court decision forbids such teachings of creationism in public schools as unconstitutional endorsements of religion.

Most of the members of the school board were voted out in November due to a backlash over the issue; the new board members do not plan to appeal the case.

Although Rothschild – who graduated from the University of Pennsylvania Law School, and is a member of Beth David Reform Congregation in Gladwyne – is anxious to get back to his work as a commercial litigator, he's far from finished talking about the issues of intelligent design, evolution and the establishment clause of the First Amendment.

Along with Stephen Harvey, the Pepper Hamilton attorney who worked side by side with him on the Dover case, Rothschild plans to appear this month at the University of Kansas to speak about the fallout from the intelligent-design ruling.

"Kansas is obviously one of the next battlegrounds over the issue of teaching evolution," he said, pointing to a November decision by the Kansas State Board of Education mandating that teachers stress that Darwin's theory of evolution has been challenged by fossil evidence and molecular biology.

Rothschild added that efforts to curtail the teaching of evolution have led to a breakdown in the separation of church and state. Opposition to evolution, he asserted, essentially espouses a particular religious viewpoint.

"It is an issue of separating science and religion," he explained. "They are two different ways of knowing, both of which are valid, but don't overlap."

Still, Rothschild said that while preparing for a case of such profound importance, he couldn't help but delve into his own religious beliefs.

"Like many people, it's sort of an open question to me: What role did God have in creating all of life?" he said. "I don't think that my relationship to faith and religion ever depended upon this very rigid acceptance of the Genesis account. It's okay to struggle with these questions. It's okay to accept what we learn scientifically and rationally, and not feel like we are in conflict with faith."

The 45-year-old Harvey, a Roman Catholic, summed up several lengthy theological discussions he'd had with his colleague by offering a conclusion. They determined that the existence of life could not possibly be micro-managed.

"We envisioned a God," he said, "who made a world that makes itself."



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