11
“Breathtaking Inanity”
The job before democracy is to get rid of such canaille. If it fails, they will devour it.
—H. L. Mencken
Judge Jones thumbed through the verdict one more time. He had been working on the document for five weeks, ever since the trial ended. Yet, each time he picked through it, he found another grammatical error, another typo. He threw it down on his desk. He couldn’t look at it anymore.
Go ahead, he told his law clerk. File the document.
At Pepper Hamilton’s Harrisburg office, the lawyers wandered in and out of their offices, drinking coffee, chatting distractedly with the scientists, Kevin Padian and Eugenie Scott, who had both flown in for the decision. Empty potato-chip bags and candy wrappers littered Rothschild’s makeshift office, the result of nervous nibbling in the past few months. Someone started a pool on what time Jones would issue the verdict.
The plaintiffs and teachers, meanwhile, tried to go about their daily routines, unable to focus.
Just as she promised the year before, Bertha Spahr had made her chocolate biscotti for her teachers just in time for the decision. Spahr wasn’t the only one to distract herself in the kitchen. Barrie Callahan baked Christmas cookies. Steve Stough spent the morning in class, sneaking peeks every few minutes at his e-mail. Finally, agitated by the fact he still hadn’t heard anything, he jumped in his truck and drove home. On the way, he called Cyndi Sneath. Just climbing out of the shower, Sneath lunged for the ringing phone. “What have you heard?” Stough wanted to know.
Just after 10:30 that morning, the verdict filed moments earlier, Jones turned on the television in his chambers and waited. In fifteen minutes, the headline scrawls began. The stories soon followed. His law clerk, Adele Neiburg, and his deputy, Liz O’Donnell, watched with their boss. They flipped through the channels—CNN, MSNBC, Fox News. Jones’s picture kept popping up on the screen. The two women turned from the television and stared at him.
With Stough on the phone, Sneath glanced at her television. She saw the CNN scrawl. “It’s coming across the bottom,” she told him. “Judge issues decision in Dover.”
As Callahan glanced out the window, her phone rang. She panicked. An NBC news crew was walking up the front steps to her house. She had cookies in the oven, and she didn’t yet know if the news was good or bad.
The e-mail showed up on computers at Pepper Hamilton. Lawyers hit print and grabbed copies. At first, there was little sound except for the flipping of pages. Padian started reading from the beginning. Lawyers jumped to the end, where they knew the ruling would be:
“Defendants’ ID Policy violates the Establishment Clause of the First Amendment of the Constitution of the United States. . . . Defendants are permanently enjoined from maintaining the ID Policy in any school within the Dover Area School District.”
It was better than they hoped.
“The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop, which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.”
Rothschild darted through the office, reading aloud from the decision. Walczak called Ken Miller. Riding on a train, the scientist could only make out Walczak’s hoarse voice screeching, “Grand slam! Grand slam!”
For in 139 pages, Jones not only chided what he described as school board members’ “breathtaking inanity,” he also ruled that intelligent design was not science.
While the parents and attorneys thought that Jones might rule in their favor regarding the board members’ obvious religious motivations, the bigger question had always been whether he would take a position on ID as science. His verdict determined that it was unconstitutional to teach the concept in science class.
“It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science,” Jones wrote.
He concluded not only that it was indeed a religious proposition, but that when its supporters spoke of “the designer,” they were talking about a specific deity: “The writings of leading I.D. proponents reveal that the designer postulated by their argument is the God of Christianity.”
As Stough raced home, Pepper Hamilton’s legal assistant Kate Henson called him with the good news. He stopped by his house and sent a brief e-mail to his friends and family. “Judge rules in our favor. Intelligent design not science. No shit.”
Later, Stough remembered that his pastor was on his e-mail list.
Sneath dressed and rushed to Christy Rehm’s house. When Sneath arived, Rehm was blasting the Pearl Jam song “Do the Evolution.” The two women jumped in Rehm’s car and drove north on Route 74 for Harrisburg. They passed one of the ousted board members, James Cashman, standing in his used-car lot. Silly with excitement, they couldn’t resist. Sneath leaned out the window, and gave the man the finger. Rehm laid on her horn and yelled, “Loserrrrr!”
At Dover High School, Jess Kitzmiller’s French teacher stopped her in the hall with the news. Jess told her friends. Soon, the news had traveled around the school. Science teachers Bertha Spahr and Rob Eshbach, breathless with vindication, hugged each other. Jones had also criticized the disrespect shown to Dover’s teachers. “The Board brazenly chose not to follow the advice of their only science-education resources as the teachers were not included in the process of drafting the language adopted by the Board Curriculum Committee,” he said.
When Stough walked into the Pepper Hamilton office, a woman at the front desk greeted him with a copy of the full decision. In the lobby, he and others sat on chairs pulled into a circle and tried to go over it from the beginning. But every time Stough started to read, someone yelled out, “Oh my God. Look at page 85!” Or “62!” or “112!”
Within ninety minutes of the announcement, members of the Discovery Institute, their worst fears realized, blasted the ruling from Seattle. In a press release, John West wrote, “The Dover decision is an attempt by an activist federal judge to stop the spread of a scientific idea and even to prevent criticism of Darwinian evolution through government-imposed censorship rather than open debate, and it won’t work.”
But throughout the trial, Jones learned much about Discovery’s tactics and he had anticipated such a response. “Those who disagree with our holding will likely mark it as the product of an activist judge,” he wrote. “If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.”
Jones decreed Discovery’s fallback “teach the controversy” strategy a fraud.
“ID’s backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.”
At the press conference later that day, reporters and camera crews packed Pepper Hamilton’s conference room. The parents and attorneys squeezed by the media, barely able to fit inside.
Callahan sat between Walczak and Rothschild, grinning up at their smiling faces. In the back row, Christy Rehm and Tammy Kitzmiller fidgeted and poked each other. Pastor Eshbach, who warned board members eighteen months earlier that they would divide the community, stood quietly, watching from a corner. Plaintiff Joel Leib wore a huge satisfied smile on his face. In his decision, Jones quoted Leib, who traces his family back to Dover’s original settlers. “It’s driven a wedge where there hasn’t been a wedge before. People are afraid to talk to people for fear, and that’s happened to me. They’re afraid to talk to me because I’m on the wrong side of the fence.”
Jones referenced Justice Brennan’s opinion in Edwards v. Aguillard that a board’s articulation of secular purpose “must be sincere and not a sham.”
Jones wrote, “Although Defendants attempt to persuade this Court that each Board member who voted for the biology curriculum change did so for the secular purpose of improving science education and to exercise critical thinking skills, their contentions are simply irreconcilable with the record evidence. Their asserted purposes are a sham.”
“Thank you, Judge Jones,” Kitzmiller said at the press conference. “Thank you for listening.”
Eugenie Scott handed Stough a T-shirt listing the names of hundreds of scientists named Steve who support evolution. NCSE had made Stough an honorary member of “Project Steve Steve,” a campaign stressing the validity of evolutionary theory and created in honor of Harvard evolutionary biologist Stephen Jay Gould. NCSE’s point is that evolution has overwhelming support since scientists named Steve make up one percent of the scientific community. Stough’s name had been included on the T-shirt. He held up the shirt for the cameras and grinned.
After the reporters packed up their cameras and microphones, the plaintiffs and their lawyers, joined by Dover’s science teachers, headed off to a bar. As the news traveled around the world, they celebrated. Stough received a call from a reporter in New Zealand. Barrie Callahan’s friend, vacationing in Malaysia, saw her on her hotel room’s television. In Australia, the daughter of another friend heard Callahan’s voice on the radio.
Jones, meanwhile, sat down to a quiet dinner with his wife. He ate with the television on, watching the news.
In a written statement released later that day by his law firm, Thompson said, “The Founders of this country would be astonished at the thought that this simple curriculum change ‘established religion’ in violation of the Constitution that they drafted.”
He said the Supreme Court’s interpretation of the Establishment Clause in the past forty years—since the banning of organized prayer and teacher-led Bible readings in public schools—is “in hopeless disarray.”
“The district court’s decision today continues along this path of applying a fundamentally flawed jurisprudence. Unfortunately, until the Supreme Court adopts a more coherent and historically sound jurisprudence, school districts like Dover will be at risk of costly lawsuits by the ACLU for adopting such modest curriculum changes such as the one at issue.”
One has to wonder whether Thompson ever expected to sway the verdict. His prize, he said, always had been the U.S. Supreme Court. Which may be why he seldom appeared to try during the trial. He was just biding his time, fighting a battle for public opinion. He wanted those on the Christian right to believe that an injustice had taken place in Dover.
Barrie Callahan found the irony delicious. Thompson’s professed religious revolution had been thwarted by the democratic process. With a newly elected school board in opposition to the now unconstitutional intelligent design policy, any chance of an appeal was dead. Voters didn’t want a revolution. They wanted the saga to end. They dismissed Thompson’s arguments and cleansed the temple.
As for Behe, he assured me he’d talk to me after the filing of the decision. He gave me the phone number where he could be reached. I called several times. He never answered. I left voice-mail messages. He never called back.
My colleague Michelle Starr, with a copy of the decision in her hand, visited Bonsell’s radiator repair shop. Until Starr handed him the verdict’s final pages, Bonsell hadn’t heard the news. Staring down at the words in his hand, Bonsell appeared shocked, Starr remembers. “The inescapable truth is that both Bonsell and Buckingham lied . . .” Jones wrote.
Was it possible that Bonsell hadn’t expected Jones to call him a liar? That he thought he could get away with swearing, under oath, that he had no idea where the money came from to buy the Pandas textbook, then admit, in court, that he actually knew all along? Darwin wrote in Descent of Man, “ignorance more frequently begets confidence than does knowledge.”
Jones was under no delusion that no one had ever before lied in his courtroom. But there was a brazenness to what he had witnessed. He couldn’t ignore what Buckingham and Bonsell had done, he said. After he grilled Bonsell, Jones gathered copies of school board members’ depositions and court transcripts. He sent the information down to the federal courthouse’s second floor to the U.S. Attorney’s office with the recommendation that it investigate Dover’s school board members for perjury.
“The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy,” Jones wrote in his decision. “It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.”
When reporters called Buckingham at his home in North Carolina, the fragile man who limped into the courtroom for his testimony had disappeared. Rather, the blustery cop picked up the phone. “If he says I’m a liar, then he’s a liar,” Buckingham said. “I think Judge Jones ought to be ashamed of himself. I’m still waiting for a judge or anyone to show me anywhere in the Constitution where there’s a separation of church and state.”
At the conclusion of the Scopes Trial, H.L. Mencken wrote, “Even a superstitious man has certain inalienable rights. He has a right to harbor and indulge his imbecilities as long as he pleases, provided only he does not try to inflict them upon other men by force. He has a right to argue for them as eloquently as he can, in season and out of season. He has a right to teach them to his children. But certainly he has no right to be protected against the free criticism of those who do not hold them. He has no right to demand that they be treated as sacred. He has no right to preach them without challenge.”
If Walczak had worshipped my father’s Jesus, Dean Lebo would have adored him.
But my father believed, as many fundamentalist Christians do, that the ACLU is a Communist-inspired plot against God. “You mean, the American Communist Lawyers Union?” he’d ask, and chuckle like I never heard that joke before. I’d sigh and roll my eyes.
This is an issue of lasting confusion for me. Why do evangelicals conflate an organization that champions the U.S. Constitution and the rights of individual liberties to a political party that embraces totalitarian government and collective ownership?
“We’re the antithesis of communism,” Walczak said.
Walczak often pretends to be cynical, and maybe he is, but he also holds dearly such romantic notions as fairness and equality—all the things, actually, that my father and other evangelicals say they believe in.
His family emigrated from Europe. His mother’s side of the family were Holocaust victims. His Jewish grandmother died at Treblinka. His grandfather, a lawyer and violinist, escaped the Polish death camp and devoted the rest of his life to testifying about the war crimes he witnessed. Walczak’s mother, only eight years old at the start of World War II, was hidden by a Christian family and survived. After the war, she reunited with her father.
Walczak’s story sounds like an evangelical testimony. In high school, he didn’t know what interested him or where he wanted to take his life. He played soccer in the afternoons and otherwise hung out with friends, doing little studying.
He applied, and was accepted, to Colgate University through its early admissions program. Failing his senior classes, Walczak knew that if he waited to apply, the school would deny him based on his later transcripts. He continued partying through his freshman year of college, disinterested in studying, and landed on academic probation. But, one class, a freshman seminar taught by a former CIA agent, sparked an interest in civil rights. Walczak became interested in social change through nonviolent protest. He studied the teachings of Mahatma Gandhi and Dr. Martin Luther King Jr. He wrestled with ethics, became a philosophy major, and began trying to figure out how to order his life. He met Kathy, a blond cheerleader studying to be a doctor, and the woman he’d eventually marry. Walczak decided his life should have purpose. In 1983, just after he graduated, he traveled to Poland to take part in Lech Walesa’s Solidarity Movement. The country was under martial law in order to silence the anti-communist activists. Despite accounts in the international press, the underground movement was growing. Walczak took photos and collected pamphlets. He remembers walking up a street in Gdansk with a shipyard worker. As an American who took free speech for granted, he spoke openly of his outrage at government injustice. The big man put his hand over Walczak’s mouth and warned him that such talk was dangerous.
One day, a spontaneous Solidarity demonstration broke out. As the shipyard workers rallied, “the cops came in and started whacking people with nightsticks,” Walczak said. He snapped pictures, but officers blindsided him, throwing him to the ground. They tried to seize his Nikon, but he wrapped his body protectively around the camera. A group of shipyard workers, built like line-backers, yanked him from the officers. They yelled for him to run as they blocked the officers with their bodies.
“It was like out of a movie,” Walczak says. Chased by the police through the cobblestone streets, he and his friends jumped on a streetcar just as the doors closed.
Realizing that he was now likely targeted by police, he met with the U.S. Consul in a cavernous Soviet-style building. Walczak started to talk about the photos and underground pamphlets, but the man shushed him. He turned up the volume of a transistor radio and motioned for Walczak to whisper in his ear. He told Walczak to leave the material behind. He promised that he would forward it to the United States in a diplomatic pouch.
Walczak left Poland on a train. Border police entered the private car and demanded to see Walczak’s papers. The officer ordered him to undress and searched him. Shaken, Walczak realized he would have been arrested had he been found with the photographs and pamphlets. When he returned home, he said, “there was no doubt in my mind I wanted to be a civil-liberties attorney,” he said.
His cluttered office is on the second floor of a narrow building in a funky section of Pittsburgh dotted with ethnic storefront restaurants. At the building’s kitchen sink, a sign instructs staff and visitors alike to wash their own coffee cups. Private law firms may have offered him better paying jobs, but he’s never looked back. And while Walczak isn’t much of a believer in God, he said he credited his path in life to fate. But where Walczak and evangelicals differ is that he strives for justice here on Earth, not salvation and retribution in the next life.
If he could wave a magic wand to be a believer, would he? Walczak doesn’t know. He’s always had a hard time reconciling the fact that bad things happen to good people. He has trouble ignoring the harmful things being done in the Lord’s name. The God fundamentalists believe in, “a smiter for infinite transgressions,” is not a God he wants to believe in.
An e-mail from him three days before Judge Jones’s verdict prompted my last fight with my father. Walczak wrote of the Christmas cookies with three kinds of sprinkles that he had been baking that evening with his family. He mentioned the hand-carved manger in his living room.
His e-mail had been in response to a facetious reference I made about the ACLU’s “War on Christmas.” Fox News’ Bill O’Reilly, joined by a cadre of outspoken fundamentalists, had mounted a media campaign to decry a liberal “conspiracy” to obscure the religious aspect of the holiday. But O’Reilly’s conspiracy had no basis in reality.
1 Still, that didn’t keep the evangelicals from parroting the talking points. That night, my father brought up the War on Christmas, of the “politically correct” movement to force Christ out of Christmas.
I berated him for his willingness to buy into such a lie. I said something, which I’m sure made little sense, about hand-carved mangers and, “Three kinds of sprinkles, Dad!” He looked at me, startled, and left the room. The next morning, he awakened thinking of me. “Why is she so angry?” he asked my mother.
My father was a frugal man who, when he bought a cup of takeout coffee, took great pleasure in reusing the cardboard cup until it disintegrated in his hands. “I’ve been using that one for about a month,” he’d say, turning the cup to show off its sad decay. He measured the world in $12 increments—the price to feed a child in Haiti for a month. To him, every $12 saved meant one less hungry child. He’d ask how much I’d spent on my hair, then do the calculations. “That’d feed eight children,” he’d say, nodding his head.
For years, my father had a beat-up pair of red sneakers. Stained with frayed laces, he refused to replace them. Finally, when they were falling apart at the soles, flip-flopping when he walked, he splurged and bought himself a new pair. The idea of him buying something not only brand new, but from a real store, and not the Salvation Army, was a strange one. In our family, this was news. The story spread quickly.
One day in December a teenage boy with a girlfriend and a baby came into the radio station. My father sent him to the upstairs apartment to comb through the used clothing he collected for others. He told the young father to take whatever he found. The boy saw the new sneakers, exactly his size and still nestled in their box. He came downstairs with them on his feet. My father smiled. It wasn’t until later that the boy learned he had taken my father’s shoes.
Nine days after Judge Jones’s decision, my father laced up the beat-up sneakers with the worn-out soles and drove to one of the local prisons, just as he did every Thursday. A member of Second-Chance Ministries, he’d sit and witness with prisoners, talking to them about salvation. In my father’s world, all things had purpose and nothing could be so worn and useless that it should be tossed away. He practiced this whether it was with a coffee cup or a man’s life.
He continued to help the men, those who wanted his help, after they were released. He found them jobs and cars and apartments. For months, one man, Larry Ray, slept on the floor of the radio station until he was strong enough to live on his own. Ray became my father’s closest friend. Two weeks earlier, my father confided to him that he had suffered a heart attack while sitting in church. My father believed in faith healing. He chose God over science. He swore Ray to secrecy and never visited a doctor.
On this particular Thursday at the Cumberland County jail, my father saw a man milling about with the other prisoners. He had never met him before. But, as he said the Lord so often did for him, he told the prisoner that he felt led to speak with him. In the middle of prayer, my father rested his head on the table, his Bible next to him. The prisoner waited a bit, thinking maybe my father had fallen asleep. Doctors said he died of a massive coronary.