FREEDOM WATCH The devil and Judge Jones BY HARVEY SILVERGLATE

Much ink has been spilled over the exhaustive and unusually impassioned 139-page opinion released December 20 by Pennsylvania US District Judge John E. Jones III. That’s not surprising, since it was delivered by a Republican Bush appointee who threw out a statement made mandatory for Dover, Pennsylvania, biology classes that highlights supposed "gaps" in Darwinian evolutionary theory and points out the possible merits of "intelligent design" (ID). Further, Judge Jones found ID to be a poorly disguised form of creationism — a religious doctrine already tossed out of public schools by the Supreme Court in a celebrated 1987 case (Edwards v. Arkansas) for violating the separation of church and state. There is nothing scientific about ID, Jones ruled, because it depends on transcendent beliefs rather than testable hypotheses. Adoption of ID would "change the ground rules of science" — something Jones found to be the goal of its supporters. The reader could not possibly have missed Jones’s eloquent defense of the scientific revolution and its gains for modernity.

But Judge Jones’s concerns reached considerably deeper, as did his willingness to place this trial in broad social and political context. The courts have long recognized that religious strife can destroy the cohesion and tranquility of a society. Every so often, however, an opinion gets to the heart of why the Bill of Rights both guarantees the free practice of religion (the so-called "free exercise" clause) and protects citizens against state-approved religion (the "antiestablishment" clause). Jones’s ruling did just that, and thus belongs in the stellar company of the 1943 Supreme Court opinion that invalidated an attempt to force Jehovah’s Witness children to pledge allegiance to the flag, arguing that history predicts religious compulsion ultimately produces "only the unanimity of the graveyard." Although Jones did not point out in so many words that we are currently battling an antirational, theocratic, antimodern terrorist movement abroad, it’s hard to miss the implications of his opinion for a certain brand of Christian fundamentalist.

Judge Jones discusses with particular alarm the ways in which the school board’s religious sectarianism turned the good people of Dover against one another. Science teachers, who defied the board’s edict, engaged in civil disobedience by refusing to read the ID statement to their students; unhappy but compliant school administrators ended up filling that role. Dissenting school-board members found their morality and ethics questioned by their fundamentalist colleagues. "I myself have been twice asked within the past year if I was ‘born again,’" one board member complained in what the judge termed a "poignant" resignation speech. Another member resigned when he was "referred to as unpatriotic" despite 11 years in the Army, Jones noted. The sectarian hostility rending the town’s residents was equally palpable and disturbing to the judge.

Jones was also unsparing in his criticism of the tactics used by the school board and its supporters. He not only excoriated board members for their willingness to lie under oath about their actions and intentions, but criticized the role of the Thomas More Law Center of Ann Arbor, Michigan, a "national public-interest law firm" that seeks to promote Christian values through litigation. The firm’s eagerness "to find a constitutional test case on ID" prompted the school board to adopt an "imprudent" policy, he wrote, and stirred up a "legal maelstrom" that resulted in an "utter waste of monetary and personal resources."

Perhaps most interesting, Jones not only denied emphatically that he is an "activist" judge, but sought to explain why. He dealt with the canard that activist judges are hostile to religion while "strict constructionist" judges allow God what they feel is his rightful place in the public arena. The Dover case thus was not one of judicial activism versus strict constructionism, but rather one that called for enforcement of the anti-establishment clause of the First Amendment for the very reasons it was written by the republic’s founders.

Judge Jones’s message was a sharp, if implied, rebuke of President Bush — who, in an August 1 press conference, said public schools should give ID the same exposure as they give to evolution. Don’t be at all surprised if the religious right condemns this truly independent and principled judge not only for activism, but for biting the hand that fed him.