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Repost: A Creationist for the 9th Circuit Court? A Review of Lawrence VanDyke

Given the news (first reported by Mike Dennison) that President Trump has announced that he will nominate former Montana Solicitor General Lawrence VanDyke for the 9th Circuit Court of Appeals, this post from 2014 (when he was running for the Montana Supreme Court) seems appropriate once again.

While we can be certain that Steve Daines will vote to confirm VanDyke, let’s urge Senator Tester to vote no on this candidate who wasn’t qualified for the Montana Supreme Court and who definitely isn’t qualified for the 9th Circuit.

[Note: This is a long post. The tl;dr version? Supreme Court candidate Lawrence VanDyke has argued that non-scientific theories of Intelligent Design should be taught in schools. That’s legally wrong and educationally absurd.]

As Cowgirl notes in her piece, while Mr. VanDyke was at Harvard Law School he authored an incredibly positive review of a book by Francis Beckwith called Law, Darwinism, and Public Education: The Establishment Clause and the Challenge of Intelligent Design. The book (and Van Dyk’s review take the position that teaching the theory of Intelligent Design in classrooms would not violate the Establishment Clause’s prohibition against government-sponsored religion. That position and Van Dyk’s poorly-reasoned review led to a firestorm on the Internet, where real scientists were quick to attack the idea that schools should teach the non-scientific theory of Intelligent Design alongside evolution.

And teaching Intelligent Design alongside evolution is exactly what VanDyke proposed in his review. He wrote:

Yet perhaps the most ironic aspect of this debate is that Darwinists are even opposed to the inclusion of ID in the public school curriculum. If there is any fundamental tenet of Darwinism, is it not that competition leads inexorably to progress? Consequently, apart from erosion of their philosophical proselytism, what have Darwinists to fear from a little rivalry? After all, the ideological defeat of naturalistic evolution at the hands of the ID movement would nicely illustrate “survival of the fittest” – it could be Darwinism’s last vindication.

Those of you who have followed the creationism/evolution debate in recent years are no doubt familiar with Intelligent Design, a science-free public relations campaign to introduce creationist principles into public schools. VanDyke’s argument was so out of the mainstream of educational and legal thinking on the issue that the Internet basically exploded over his review.

Responding to Mr. VanDyke’s review, Brian Leiter excoriated Van Dyke’s analysis. He opens:

Mr. VanDyke may yet have a fine career as a lawyer, but I trust he has no intention of entering law teaching: scholarly fraud is, I fear, an inauspicious beginning for an aspiring law teacher. And let none of the many law professors who are readers of this site be mistaken: Mr. VanDyke has perpetrated (intentionally or otherwise) a scholarly fraud, one that may have political and pedagogical consequences.

It wasn’t just Mr. Leiter. Steven Thomas Smith from MIT described the firestorm that followed Van Dyke’s views:

Last year, Harvard Law Review editor Lawrence VanDyke, 2L, achieved this lofty status by publishing a besotted review of Francis Beckwith’s book about the constitutionality of Intelligent Design creationism in public schools. VanDyke’s insipid and error-filled piece (“not even wrong” in Pauli’s words) would have been eminently ignorable had it not appeared in the often respected Law Review, and this fact alone attracted a dogpile of criticism involving political columnists, science policy writers, lawyers, biologists, and the Panda’s Thumb. VanDyke, revealing that his motives were those of a clueless dupe, and not a Machiavellian operator, actually responded to this withering barrage with an even more cluelessly clueless post at HLS’s Federalist Society (in which he cites “Project Steve” as proof that 1% of scientists doubt evolution!), ensuring that much fun was had by all.

The Washington Monthly’s Kevin Drum piled on:

VanDyke (and Francis Beckwith, whose book he is reviewing) therefore try an end run: the very paradigms of science itself are deficient, they say. Well, perhaps they are? Who knows? But if so, then they’d better also start attacking the hegemony in our science classes of general relativity, plate tectonics, and quantum mechanics — except that if they tried it the Harvard Law Review would reject it as the obvious crankery it is.

Astonishingly enough, VanDyke chose to defend his initial review, posting his counter-argument on (you guessed it!) a web site devoted to teaching the theory of Intelligent Design. In it, he wrote:

This is why people like Leiter – nonscientists – sometimes rabidly attack anyone foolish enough to challenge their deeply held, practically religious, belief-system.

In other words, ID has been “found wanting” on philosophical grounds, not empirical grounds. Some of ID’s claims are philosophical, as are some of naturalistic evolution’s – these by definition could never be refuted empirically.

That VanDyke would equate a defense of the scientifically accepted theory of evolution as a “practically religious” viewpoint demonstrates a worldview that would be troubling, to say the least, for a Montana Supreme Court justice.

A few more quotes from VanDyke’s law review article also make this clear.

VanDyke approvingly summarizes Beckwith’s argument that Intelligent Design is no more religious than the theory of evolution:

Beckwith pulls the trigger in the final chapter, arguing that, although ID may lend support to a plethora of theistic religions, it is itself no more a religion than naturalistic evolution (pp. 145-66). While observing that the courts “have provided us with no clear definition of religion,” Beckwith does distill two basic inquiries courts have made when faced with a putative “religion” under either a Free Exercise or Establishment Clause analysis. First, does it resemble conventional religions? (p. 148). Second, if not, “does the disputed belief function  [*968]  … in a way parallel to the way in which conventional religion functions in the life of the believer?” (p. 148). ID does not have formal services or otherwise exhibit “certain formal and external signs” of religion (p. 153). Nor is it “comprehensive in nature” or a “belief-system” (p. 153). Rather, similar to moral claims or evolution, ID is an “isolated teaching” that is consistent with but not itself a religion and does not function in the life of a believer like a religion (p. 153).

Doubling down on this absurd view, he asserts that the theory of Intelligent Design is derived from the analysis of empirical evidence:

First, unlike creationism, ID is not transparently derived from any religion’s special revelation but rather from critical reflection on empirical facts (pp. 154-55).

There simply can be no facts to confirm or deny Intelligent Design, a point the Anti-Defamation League makes quite eloquently:

Intelligent design is not a part of science – it cannot be confirmed or denied by the scientific method. Teaching it as science confuses and misinforms students about the scientific method, thereby depriving them of high-quality science education and possible career options.

Reasonable people can disagree about matters of theology and science, but a Supreme Court justice has a special obligation to ensure that public schools are places where students are free from religious indoctrination. That creationists have dressed up their religious beliefs about the creation of the universe and given them a new name doesn’t change the fundamental fact that Intelligent Design is not science but faith, belief and not evidence. To argue that schools should be in the business of teaching religious theory in science classes is not only absurd; it’s incredibly dangerous.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.

About the author

Don Pogreba

Don Pogreba has been writing about Montana politics since 2005 and teaching high school English since 2000. He's a former debate coach, and loyal, if often sad, fan of the San Diego Padres and Portland Timbers. He spends far too many hours of his life working at school and on his small business, Big Sky Debate.
His work has appeared in Politico and Rewire.
In the past few years, travel has become a priority, whether it's a road trip to some little town in Montana or a museum of culture in Ísafjörður, Iceland.

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