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Kitzmiller v. Dover Area School District

Trial transcript: Day 15 (October 24), PM Session, Part 2


THE COURT: All right. We continue with Mr. Walczak's cross-examination.


Q. I want to talk to you, Professor Fuller, about evolution as the big tent. Emphasize the "T" there. I believe that you testified that evolution is the biggest of big tents?

A. Yes. That's partially a compliment.

Q. I took it as a complete compliment.

A. Okay, good.

Q. But evolution includes biology, all the biological sciences, cell biology, microbiology, genetics, paleontology. And so evolution really has managed to accommodate all of these many scientific disciplines?

A. Yes, that's true, that's true.

Q. And, in fact, even within these disciplines as you've testified, there are many disagreements among people about exactly the means and mechanisms of evolutionary theory?

A. Yes.

Q. So, in fact, evolution is a very inclusive theory that brings together many different disciplines and thousands and thousands of scientists?

A. Yes, it does. That's certainly true.

Q. And intelligent design has not been able to penetrate the science?

A. Well, intelligent design, in a way, scopes out the sciences differently, but it certainly has not been able to get the sort of, you know, breadth of constituency that evolution has had, but it's had much less time to work with.

Q. I want to talk about intelligent design's big tent. Would you put up Exhibit 429, please.

MR. WALCZAK: May I approach, Your Honor?

THE COURT: You may.

THE WITNESS: Is there a hard copy? All righty. Life in the big tent.


Q. I direct your attention to the synopsis there in the second paragraph.

A. Yes.

Q. If you could read beginning with "under" halfway through that second paragraph.

A. Do you want me to read it out loud?

Q. Please.

A. Under the canopy of design, as an empirical possibility, however, any number of particular theories may also be possible, including traditional creationism, progressive old-earth creationism, and theistic evolution. Both scientific and Scriptural evidence will have to decide the competition between these theories. The big tent of ID provides a setting in which that struggle after truth can occur and from which the secular culture may be influenced.

Q. So evolution brings together all sorts of scientific disciplines. Correct?

A. Correct.

Q. And intelligent design here brings together not only some alleged science, but also religious views?

A. But this is not the intelligent design I'm talking about. This is one particular scoping of it. I don't -- this is not the type that I'm talking about as being a scientific competitor for evolutionary theory.

Q. And do you know who Paul Nelson is?

A. Vaguely, vaguely, yeah, yeah. He has some connection with Dembski, doesn't he?

Q. He is a senior fellow at the Discovery Institute. What's the intelligent design you're talking about?

A. Well, I'm talking about the type that is interested in playing by the rules of science in the sense of trying to come up with a research program with testable hypotheses, that, in a sense, is competing in the scientific space, primarily, regardless of what the religious motivations may be, but not taking the religious motivation itself somehow as evidence, as it were, for the scientific validity of the statements.

Q. So, in fact, this would not be acceptable to you as --

A. Not to me, at least in terms of these various disciplines that are being included here. Some of these would not, for me, count as appropriately scientific.

Q. And I know you talked about the motivations of the proponents didn't necessarily invalidate a theory so long as it was testable otherwise.

A. That's correct.

Q. Now, if the motivation, in fact, was shown to be -- to develop a view that is consonant with Christian and theistic convictions, would that change your opinion?

A. Well, it depends whether it was testable or not, doesn't it? I mean if it's testable by scientific means. I mean, after all, Sir Isaac Newton thought he was interpreting the Bible when he was doing Principia Mathematica, but you didn't have to hold that view in order to see that his theory was valid.

Q. But if you start out with a premise that we're going to design something to make it consonant with particular religious views --

A. Well, we'll have to see whether it pans out scientifically.

Q. So that --

A. It may be a good heuristic, it may not be. But the proof of the pudding is in the scientific eating, not in the consistency with the Bible.

Q. So it has to survive the testability that you talked about?

A. Yes. And here I would emphasize the point that testability is a notion that is neutral to the tested parties. So it's, you know -- so, in other words, one doesn't, as it were, have theistic tests that only theistic people can abide by.

Q. Matt, could you put up Plaintiffs' Exhibit 718.

A. Oh, yes.

MR. WALCZAK: May I approach, Your Honor?

THE COURT: You may.

THE WITNESS: Thank you.


Q. This is an article written by Professor Behe.

A. I'm familiar with it.

Q. You are familiar with it. If you could turn to Page 705 of this.

A. Yes.

Q. And you'll see about four lines down it says, The argument is less plausible to those for whom God's existence is in question and is much less plausible for those who deny God's existence. Do you see that?

A. What is he referring to?

Q. He's referring to intelligent design. The question is, What if the existence of God is in dispute or denied? I mean, please, if you'd like to take a moment to read that.

A. Yeah. Okay. How much of this do you want me to read for myself?

Q. Well, let me --

A. I just looked at the first paragraph. Do you want me to look at any more of it?

THE COURT: You can read all of the article that you desire to make sure --

THE WITNESS: Well, I'm not sure what he's asking.

THE COURT: Well, if you need to read more based on his question, then you can tell him.


THE COURT: But suffice it to say that you've read the referenced paragraph. Is that correct?


THE COURT: All right. Then you go ahead with your question.


Q. So if the validity of a theory or belief in a theory depends on whether or not you believe in God or not, does that undermine your assertion that this would be science?

A. But he's not saying that. He's saying plausibility.

Q. He's saying that if you are not sure about the existence of God, it makes this theory less plausible, and that if you deny the existence of God, if you're an atheist, then that makes the theory even much less plausible. If you have a theory that depends on whether or not you believe in God or not --

A. I think he's talking about the context of discovery. Namely, is this kind of theory, intelligent design -- what kind of person is likely to be drawn to it is something to turn into a research program. So it's a context of discovery matter, I take it.

And historically, it is true, people like Sir Isaac Newton and Mendel who, in a sense, thought they could get into the minds of God had a much easier time dealing with the design standpoint. Okay? And I think that's all he's saying. I might be wrong. I haven't read the whole thing. But, you know, if that's what he's saying, that's pretty innocent. He's not saying validity, he's saying who would be attracted to this as a kind of argument to pursue.

Q. Well --

A. I mean, again, I'm guessing what he really says here, but it seems to me he's not talking about validity. He may be later. You tell me.

Q. Well, he's talking about the plausibility of the argument.

A. Okay, but plausibility, in a way, is what would draw you to the argument as something you want to develop. Right? I mean, this is the whole issue about heuristics. Certain kinds of ideas, you know, usually like analogies, metaphors, and things we find quite compelling and we use them as the basis for research. And certain people will be attracted to certain ones more than others. Some are attracted to organic metaphors, mechanical metaphors. It seems to me that's the level at which this remark is being made, at least prima facie.

Q. Well, but let's take it to the next level of justification. I mean, if that's true, if you're more likely to believe in this if you believe in God, if you're more likely to be attracted and supportive of this argument if you believe in God, does that affect your view of whether or not this is science?

A. Well, look, if this were a statement about the context of justification, where, in a sense, you need to believe in God in order to see the validity of the argument, if that were the case, if that was what he was saying, that would not be scientific.

Q. I believe you testified today that intelligent design is not creationism.

A. That's correct.

Q. But it is, in fact, a kind of creationism, is it not?

A. Well, what I mean there is that there is a historical connection out of which it grew, and we share some similar kinds of proclivities, but it's, in fact, moved in a completely different direction, it seems to me.

Q. But it's a modern view of creationism?

A. I think that's a little misleading. It's a really radical transformation. It's a really substantively different thing, and that's indicated by the kind of training of the people who are, in fact, in intelligent design. They actually are trained as scientists of one sort or another.

Q. If you could turn to Page 67 of your deposition.

A. Bear with me. I have some of my pages confused. I'm sorry.

Q. Take your time.

A. Page 67?

Q. Yes.

A. Okay.

Q. Line 15. And the question asked is, You've used this phrase ID in conjunction with earlier forms of creationism, not just in your previous answer, but also in your report. And I infer from that what you mean is intelligent design is a modern view of creationism. Then there's an objection from Mr. Gillen, and then the question restated, Is that correct? And your answer is, Well, again, yes, in a sense, but, I mean, not all creationism has been six-day creationism.

So this isn't young earth creationism, but it is a modern view of creationism, it's a type of creationism?

A. I would say it has evolved out of creationism, but it's become a totally different thing, something where one doesn't need to be an adherent to the various theological views of creationism in order to practice it.

Q. If you could go to the next page, Page 68, and starting on Line 21, the question is, Intelligent design is creationism, not just six-day creationism? And then your answer beginning on Line 24, It is a kind of creationism, it is a kind of creationism.

I didn't read the same passage twice. It's actually twice on there. Did I read that accurately?

A. Well, it looks like that is what the sentences say. But, I mean, if I may, let me just have a look here. Well, it seems to me that what I'm talking about here is that there is some historical connection between creationism and intelligent design. And so in that sense, there is a genealogy that goes back to that. But that's all I'm saying at this point. I'm not saying that to practice intelligent design, one has to be some kind of creationist.

Q. And if you could now turn the page --

A. Turn the page literally?

Q. I'm sorry, to 69.

A. Oh, okay.

Q. And beginning on Line 2, the question is, When you use the word "creationism," what do you mean? And could you read Lines 4 through 9, please, into the record.

A. Well, I mean that the idea that there is a kind of unified order to nature that is evidence of intelligent design. I mean what we now call intelligent design which used to be called the creator because the creator was always the person who had the intelligent design. So there is this historical lineage. I don't think that's controversial. So I'm making a historical point here. That's all I'm doing, is making a historical point.

Q. And creationism presupposes a creator that is separate from creation?

A. Yes, that's kind of the supernatural element, you might say.

Q. What we now call the intelligent designer used to be called the creator historically?

A. Yes.

Q. Because the creator was always the person who had the intelligent design?

A. That's a historical point, yes.

Q. The term "special creation," are you familiar with that term?

A. Yes, I am.

Q. And by that do you mean that each of the species was specially created by God or some master intellect that arose -- that they arose and did not come from a common form of life and each one is made specially by design?

A. I mean, the basic point about special creation is the denial of common descent. I think that's the fundamental view about it, much more so even that God happened to have done it. But, again, historically, special creation is connected with this idea of the creator, as well. There are several versions of it. But you've given a particularly sort of strong version of it.

Q. And would you agree that that's a form of special creation?

A. What is a form of special creation?

Q. The definition that I just gave.

A. Yes, it's a strong version of it.

Q. But it is a version of special creation?

A. Well, what you -- the thing that you said, created by God, the species separately, not common descent, and that kind of thing that you laid out.

Q. But is that not, in fact, your definition of special creation?

A. I'm not objecting to it. I'm just saying that there are different types of special creation. And some don't actually have to postulate a creator, it's more kind of a denial of common descent. So if you believe there were multiple origins, perhaps, right, of life or the universe or something like that.

Q. Well, but special creationism really is predicated on species arose from some divine blueprint?

A. Well, I mean, historically there is that connection, but there are people who believe -- who seem not to worry about the creator. I mean, Linnaeus may have been one example, actually, because Linnaeus has a kind of special creation presupposition built into his classification system but not a lot of thought about God behind it.

Q. And special creation is a remnant of the old biblical creation story?

A. Historically, of course. But then most notions in biology have some kind of root back there.

Q. And I believe you just said that special creation is really the opposite of common descent?

A. Historically, yes, that's true. And certainly they move in different directions, different spaces.

Q. Matt, could you put up Plaintiffs' Exhibit 562, the page we've identified.

MR. WALCZAK: May I approach, Your Honor?

THE COURT: You may.

THE WITNESS: Thank you.

MR. WALCZAK: Matt, can you blow up the passage in question.


Q. Dr. Fuller, let me direct your attention to the bottom of Page 214.

A. Um-hum.

Q. And there's a passage there. It appears to be a definition of creation. And I want to ask you to read that and then tell me whether you agree that that's a definition of special creation.

A. What are you referring to exactly?

Q. I'm sorry, on Page 2-14.

A. Yeah.

Q. At the very bottom.

A. So where it says, Creation means that?

Q. Right, and then it goes on to the next page.

A. Okay.

Q. If you could read that out loud, I'm sorry.

A. Oh, okay. Creation means that various forms of life began abruptly through the agency of an intelligent creator with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings, et cetera. Is that enough, or do you want me to go on?

Q. No, that's fine. Would you agree that that's a definition of special creation?

A. That's certainly one way of capturing it, yes.

Q. That is a definition, a definition of special creation?

A. Yes.

Q. In a 1998 article, the First Global Cyberconference on Public Understanding of Science, is that something you wrote?

A. Yes, I was the one who ran the thing, and this is a report on it you're referring to.

MR. WALCZAK: May I approach, Your Honor?

THE COURT: You may.


Q. I want to direct your attention to Page 331.

A. Um-hum.

Q. And about halfway down the first paragraph it says -- I'm going to read it starting with the word "however."

A. Yes.

Q. And this is something you wrote?

A. Yes.

Q. It reads, However, American discussions of PUS -- and, I'm sorry, PUS is public understanding of science?

A. Yes.

Q. American discussions of public understanding of science have been more open to matters concerning alternative medicine and so-called new-age and multicultural knowledges, as well as the incorporation of religiously inspired doctrines, and then in parentheses, e.g., intelligent design theory, a.k.a. creationism, close paren., into mainstream science education.

A. Yes.

Q. Did I read that correctly?

A. Yes, you did.

Q. And that's something that you wrote?

A. Yes, I did.

Q. And "a.k.a." means also known as?

A. Yes, it does.

Q. So that phrase actually reads, intelligent design theory, also known as creationism?

A. Well, I think what I was referring to is that is, in fact, how it is known. It's not necessarily my equation or endorsement of the two things.

Q. Now, this piece was published in Darwinism, Design and Public Education?

A. No, you're thinking of the other piece.

Q. The other piece.

A. That came up in the deposition.

Q. So this piece was published in 1998?

A. That's right. And that's an issue, too, because there's a sense in which intelligent design, in its scientific form, really has only taken off in a serious way since 1996, I would say. So there is a sense in which there is some fuzziness here about the dividing line. But if I were writing this today, I would make a very clear distinction because it seems to be there are two clearly separable tendencies going on here.

Q. So it was creationism and then sometime in 1996 or later it stopped being creationism?

A. No. What happened is, new people started to get involved with it. Behe and Dembski weren't part of the old creationist crowd. Okay? I mean, they are different people. They're sort of like a new generation of people who may be religiously inspired but who are sort of playing by the rules of science and have proper scientific training. So it's a sort of different ball game, people with different backgrounds.

Q. So could you say that this is creationism without reference to God or the Bible and it's really expressed in the language of --

A. What kind of creationism is this that we're left with then you have to wonder.

Q. Well, would you say that it's creationism expressed in the language of biochemistry and information theory?

A. Well, look, after a certain point, it doesn't matter what the motivation is. If it's done in information science and biochemical theory or whatever, then that's what it becomes, regardless -- even if there was some sense in which this stuff was religiously motivated, if it is being completely or largely expressed in the idioms of these sciences, then it has effectively entered into the scientific domain.

Q. So even though it may be the same concept but now you're talking about it in scientific or mathematical terms --

A. You're getting metaphysical with me here. The same concept? You mean the same motivation, don't you?

Q. No, I'm talking about the same concept of special creation.

A. No, it isn't the same concept. I mean, I don't see it. Maybe you see it. I don't see it. I don't see it as the same concept. I see it -- you know, it's like the emergence of a new species.

Q. But with historical roots and a common ancestor?

A. Yes. But, you know, again, this is where you have to distinguish context of discovery and context of justification. You can't damn people by their roots.

Q. And in 1998, when you published the article, you used the word "creationism" so people had a sense of what exactly intelligent design is without having to give a whole song and dance about it?

A. I'm not sure why you infer that. I mean, I guess I don't see -- no, I don't know why you --

Q. Why did you use the term "creationism" in that passage that we referred to before? I mean, you wrote --

A. Yes.

Q. -- intelligent design a.k.a. creationism. Why did you do that?

A. Why did I do that? Well, because that term was coming into vogue at the time and it wasn't quite understood where that term was coming from. And so, in a sense, I was giving a kind of historical marker to it.

Q. So you were using creationism as a marker for --

A. Yes. And also, to be perfectly honest, I wasn't all that familiar with intelligent design back then. I had some knowledge of it, but there was a sense in which differences of the kind that I'm able to sort of be more confident about I wasn't so clear on before. I mean, the thing has changed, and I've learned more about it.

Q. So you were using creationism as a place holder because you didn't know that much about it?

A. Well, I -- in a sense, yes. I mean --

Q. Do you know Jon Buell?

A. No.

Q. Do you know who he is?

A. No. Who is he?

Q. President of the Foundation for Thought and Ethics.

A. No. I don't travel in those circles.

Q. So it's just purely a coincidence that you and he picked the same place holder, creationism for intelligent design?

A. I'm not sure why you bring him up. Do I have some connection with him?

Q. I was asking whether you did.

A. No.

Q. And so you would agree that ID has its roots in creationism?

A. All I'm saying is that there is historical connection, a historical tie, but that's all I'm saying.

Q. And it's a way of interpreting creationism?

A. No, I'm saying it goes way beyond that and doesn't even require -- it doesn't require interpreting creationism.

Q. If you could turn to Page 153 of your deposition, please. And if you could look at the bottom, I'm going to read the question and ask you to read the answer. The question is on Line 21. But clearly you are indicating that intelligent design is creationism --

A. I'm sorry, I'm losing the plot here. Where are you?

Q. I'm sorry, Page 153, Line 21.

A. Right, okay. Go ahead.

Q. Question: But clearly you are indicating that intelligent design is creationism in some sense? And then Mr. Gillen objects. And then your answer, if you could read your answer going through Line 1 of the next page.

A. It is -- it does have roots in that. I mean, intelligent design is a way of interpreting creationism, that's true. Okay. I didn't say it was exclusively that, and I do think it's an unfortunate choice of words.

Q. Why is it unfortunate?

A. Well, because, first of all, it gives the impression that intelligent design is exclusively to be understood in relation to creationism. That's sort of the main error. But also to talk about intelligent design as a kind of interpretation rather than as an original sort of form of research. That is something I think was misspoken. Certainly I wouldn't say that today.

Q. Now, intelligent design uses human design capacities to lead us to conclusions about what nonhuman, non-natural actors can do in terms of creating biological life?

A. Yes, that sounds right.

Q. And this goes back to the Reverend William Paley?

A. Well, William Paley, as I mentioned, is one such source, not exactly my ideal source, but he is one source for this.

Q. And Paley -- and, again, correct me if I'm wrong, I'm a novice at all this, but Paley's idea was if human beings can do it, then God can do it kind of in a bigger way?

A. Well, that's kind of -- that's kind of the idea, though, in fact, the motivation traditionally has been because we're created in the image and likeness of God, we can understand the plan. It was originally -- the design inference wasn't an inference to the existence of God but rather to the capacities of humans to be able to understand the universe.

Q. But that's the --

A. But Paley, yeah, you're describing correctly.

Q. And that's the theological, not the scientific, but the theological basis for the design argument?

A. That's correct.

Q. And historically the designer has always been known as a certain kind of monotheistic conception of God?

A. Yes, it is in that tradition that comes about, yes. You need a God that's detachable from the creation.

Now we're getting some stuff. That's what you were talking about.

MR. WALCZAK: I'm sorry, Your Honor, one minute.

THE COURT: That's all right.

MR. WALCZAK: May I approach, Your Honor?

THE COURT: You may.


Q. I show you what's been marked as Plaintiffs' Exhibit 787.

A. Yes.

Q. And do you recognize this?

A. I certainly do.

Q. And this is part of the book Darwinism, Design and Public Education?

A. That's correct.

Q. And this is something that you wrote?

A. Yes.

Q. And if you could turn to Page 538.

A. Yes.

Q. Near the bottom of the first full paragraph --

A. Yes.

Q. -- you wrote, It is surprising that the controversial implications of Meyer's proposal do not seem to have been registered in religious circles.

A. I see what you're looking at. Okay.

Q. Is that what you wrote? Did I read that accurately?

A. It is surprising that the controversial implications of Meyer's proposal do not seem to have been registered in religious circles, yes.

Q. And Meyer is Stephen Meyer?

A. I guess. Yes, it is.

Q. And he's a senior fellow at the Discovery Institute?

A. Yes. He's one of the editors of the volume.

Q. And back on 230 -- 536, at the bottom of the page there, you discuss what Meyer's proposal is?

A. Yes.

Q. And that actually is another volume in the book, correct, Darwinism, Design and Public Education?

A. This is where this is from.

Q. But the article --

A. What I'm talking about is in there?

Q. Yes.

A. That's what you're asking me. Yes, I believe so.

Q. And if you need a minute just to familiarize yourself with the argument --

A. And you just want me to consider Meyer's point here, the part about Meyer?

Q. Do you recall now what you wrote about Meyer?

A. Yes.

Q. Let me try to summarize what Meyer's point was, essentially that genetic information exhibits specified complexity?

A. Yes.

Q. And that science can't explain the origin of genetic information, that physical and chemical laws cannot explain the ordering of DNA and proteins because they do not specify any particular order in a chemical chain of letters and that random assembly of functional genes and proteins is far too improbable to actually occur?

A. Yes.

Q. And that was Meyer's argument?

A. Yes.

Q. And then Meyer's also said, intelligence can explain the origin of specified complex information?

A. Yes.

Q. And, therefore, we infer that ID is the best explanation?

A. Yeah, well, okay. That doesn't follow.

Q. I'm sorry, that doesn't logically follow?

A. No. There are more steps to be made here.

Q. But that was Meyer's argument there?

A. Yes, but people do make these inferences to the best explanation much prematurely. It's not my favorite form of argument, but it is one that has been used a lot in science.

Q. And you believe that there is a theological problem with Meyer's argument, don't you?

A. Let me just -- do you know where I actually say that? I don't give that much thought to Meyer, I must confess.

Q. Well, I'm asking you now.

A. I see, you're asking my opinion about this.

Q. Yes.

A. Whether there's a theological problem with Meyer's argument.

Q. Well, did you identify a theological problem during your --

A. May I have a look at what I was saying -- I guess this refers to the theologians being upset with what he's saying. I don't recall what it was that I meant, so may I check?

Q. Please.

A. Can you tell me again where it was? I'm sorry, I lost the original cite for Meyer that you mentioned and where I say that Meyer has these theological difficulties.

Q. I didn't say you said it in this article. I'm asking you now whether or not you agree that there are theological problems with Meyer's position.

A. But you did point to me earlier something that --

Q. Right, I pointed you to page -- I believe it's 538.

A. Okay. I'm sorry to be so dense about this, but --

Q. I'm sorry, it's probably my questions.

A. Like I said, I don't give a lot of thought to Meyer's theological implications. I found it. Could I have just a moment to look at it?

Q. Please.

A. Okay, yes, okay.

Q. So at the beginning of that paragraph on 138 --

A. 538.

Q. I'm sorry, 538, you're right. My tentative approval notwithstanding, Meyer's view raises its own questions, one theological and the other more strictly scientific. Is it reasonable or even non-blasphemous to suppose that God is the ultimate artificer?

A. Yes.

Q. Did I read that correctly?

A. That's correct, yes.

Q. And you view that as a theological problem with Meyer's argument?

A. Yes. I mean, this is the playing God issue that I was talking about earlier this morning that was one of the reasons why a lot of these design-oriented people like Newton had to kind of go underground with their theological views because, in a sense, they thought they could know the mind of God, and Meyer's seems to be kind of moving in the same direction with his theory.

Q. So even if we understand how human beings create things, why should we think this is any kind of model for understanding how God does things and let alone how life is created?

A. Well, that's correct. I mean, I didn't say that I endorsed that particular -- if that's the inference that he's drawing, I don't particularly endorse it. I mean, I actually think the way that the design works, the design -- the argument for design in science works the other way around, namely by putting ourselves in the mind of God as if we were God, we can sort of understand how the natural world works rather than saying that we can infer God from the way humans do things.

Q. I'm sorry, and you're saying he's doing which of those?

A. He's trying to actually figure out the existence of God. And I'm saying people like Newton thought they already knew God's mind, and they were trying to figure out how nature works.

Q. But you would conclude that it's blasphemous to suggest that we know -- that what we know and what we can do is a model for God?

A. I think this is the kind of thing a lot of theologins would get upset about. I personally wouldn't lose sleep over it. I happen to like the connection between the human artificer and God. And I like the idea that people can think of themselves getting into the mind of God, because I think that's been very helpful in the promotion of science. And, again, Isaac Newton is my benchmark. So I have no problem with this, but I understand theologins would find this blasphemous because who are we to sort of figure out how God's mind works.

Q. Well, and not only theologins, but there may be non-theologins. They may be everyday, average, ordinary people who would find this blasphemous?

A. Sure, yes. Yes, I mean, I didn't say that Stephen Meyer would make it to Heaven.

MR. GILLEN: And you haven't been qualified in that area.

MR. WALCZAK: I have no further questions.

THE COURT: Ending on that note, redirect.



Q. I know it's 9:00 in Great Britain.

A. All right. I've lost track of the day since I've been here.

Q. And it's only 4:00 here, but I think we feel the same in a lot of ways. We're going to wrap this up quickly.

Mr. Walczak has directed your attention to a few pages of your deposition, Steve, and for the sake of ensuring completeness in the treatment of your testimony there, I want to ask you to look at a few more passages.

Working our way back, I'd ask you to look at -- Mr. Walczak asked you to look at a question and answer series at the bottom of Page 153. Would you look at 153 and see if you can see that passage you were asked to look at.

A. Okay, I see the page. Remind me what I'm supposed to be looking at.

Q. Sure. Starting at -- look at 19. It says, Question: Okay. And 20, you say, No, so it's not that kind of creationism. Mr. Walczak asked you about the lines on 153 running over into 154. I want to ask you to continue and read through 154 beginning at Line 3 down through Line 18, please, for the record.

A. For the record.

Q. Yes.

A. Okay. So starting with Mr. Rothschild's question?

Q. Correct.

A. Okay. Mr. Rothschild says: Okay. And what aspects of -- what do you mean by creationism when you say intelligent design does have roots in creationism or is creationist? Mr. Gillen: Objection to form. The witness: Well, I mean the motivation. The motivation for putting forward intelligent design is from people who do think there is a divine creator. I mean, I think historically that's been the case, and I think it's probably true of these people. But, again, what makes it science isn't that fact. I mean, again, all kinds of religious motivations inform science. I mean, so there's nothing, in a sense, by calling it creationism. What I'm doing is I'm giving something about the motivation of the people but not necessarily about the scientific status of what they're doing. Those are two separate issues. You've got context of discovery, context of justification.

Q. Is that consistent with the testimony you offered here today on your direct?

A. Yes.

Q. Okay. I'd also ask you to direct your attention to Page 146. And you'll see, if you look at 145-146, you were asked questions about this, Plaintiffs' Exhibit 788. And I want you to read your testimony there as it relates to 146 beginning at Line 6 where you talked about this a.k.a.

A. Yes, so this is from the Public Understanding of Science article.

Q. Right, beginning at Line 9.

A. The witness: But it's -- no, but it's not all of creationism. And it's, in fact, a part of creationism that gets taken into science. So, I mean -- I mean, obviously I'm just -- because in the time that this piece was written, right, so this was written in 1998, intelligent design theory wasn't that widely used as an expression, so I put the creationism in there so people kind of have a sense of what exactly intelligent design is without me having to give a whole song and dance about it because I'm just using it as an example. But I didn't mean to say that everything about intelligent design corresponds to everything about creationism.

Q. And what I want to get at, Steve, is to make sure that's clear. Are you saying, again, that the context of discovery is there are elements of continuity, but with respect to the context of justification there is what you regard as a critical difference?

A. Yes, that's correct.

Q. And what is that critical difference?

A. Well, it has to do the way by which theories are tested in intelligent design and validated, at least in principle, by scientific means and also the sort of people who are doing it are, in fact, people who do have scientific credentials of some sort, unlike the previous generation of people who are associated with creationism. So there are some really clear kinds of breaks that one can talk about both philosophically and sociologically.

Q. In terms of the negative argument, Mr. Walczak asked you if intelligent design theorists make a negative argument against evolutionary theory, that doesn't necessarily prove design. Let me ask you, do evolutionary theorists make the same sort of argument against design?

A. Yes. In fact, that's how I would characterize the presentation that Professor Miller did with the bacterial flagellum where he basically showed that Professor Behe's thesis about irreducible complexity was false and therefore it followed. That was sort of the spirit in which the presentation was being made. And therefore it follows from the natural selection story.

Q. And, Steve, I'd ask you to look again at Plaintiffs' 788 which is the piece on the First Global Cyberconference on the Public Understanding of Science. Turning your attention to Page 331.

A. Bear with me. Where?

Q. Certainly. Page 331.

A. Yes.

Q. You'll see there in that first full paragraph the sentence that Mr. Walczak directed your attention to beginning with "however."

A. Yes.

Q. I'd like you to read that sentence through to the end to yourself.

A. To myself?

Q. Yes. And then I have a question.

A. Okay.

Q. Now, this is another place where you use that a.k.a., and the portion of the sentence I'd like to direct yourself to is the phrase which begins, As well as the incorporation of religiously inspired doctrines.

In light of that language usage on your part in this piece, I'd like you to describe your purpose in terms of the context of discovery versus the context of justification.

A. Well, I'm only referring to the context of discovery here, obviously, when one is talking about religiously inspired.

Q. And so, again, for the purpose of clarity, are you demonstrating that you see this connection as one that is in the context of discovery, not justification?

A. That's correct.

Q. If you would turn your attention back to Plaintiffs' 429, the piece by Nelson.

A. The piece by Nelson, yes.

Q. You've indicated that this is not the sort of big tent that you see intelligent design as. Is that correct?

A. That's correct.

Q. And why is that?

A. Well, because this big tent that's being described here is basically kind of a fig leaf for all of the various forms of creationism that have ever existed. And it seems to me that the -- what is intellectually interesting and substantive and continuous with the history of science in intelligent design is kind of lost from this picture entirely.

Q. Well, and that's what I want to just make clear from your direct this morning. When you speak of intelligent design as having the possibility of providing a big tent, do you mean a big tent of the kind described in this piece?

A. No, I mean of reconfiguring the sciences as they are -- the sciences, the things we normally call science now, but reconfiguring what their relationships are.

Q. So in terms of the context of justification, would that be a big tent that is justified by what you've called the coin of science?

A. By the what of science?

Q. The coin of science.

A. Yes.

Q. Mr. Walczak asked you some questions about the statement and the fact that no -- there is no discussion or questions. Do you know why --

A. No.

Q. -- there are no questions?

A. No.

Q. Do you know why there is no discussion?

A. No.

Q. But do you believe it would be useful in terms of promoting scientific progress for there to be discussion?

A. Yes.

Q. Given your training in the history and philosophy of science and looking at intelligent design theory as it exists today, would you anticipate that a movement which aspires to an explanatory theory at the level of generality proposed by at least some intelligent design proponents to have advanced to the stage where it could be engaged in an experimental program?

A. It still needs to be developed a bit more, but in principle it could. But it really does need more adherence and more time to sort of develop the implications of its views.

Q. Earlier Mr. Walczak asked you some questions which looked at other sorts of scientific revolutions or paradigm shifts, and there was a suggestion that the case with intelligent design could be the same.

Do you see the situation confronted by intelligent design proponents as different from that of, say, the proponents of plate tectonic theory?

A. Well, I think there's a lot more opposition at the moment to intelligent design theory in terms of being able to get the institutional resources to be able to reach the critical mass to mount a research program.

I mean, because with all these examples that Mr. Walczak brought up, there was still some institutional ability to sort of pursue research, even if it wasn't taken all that seriously at the time. People could train, graduate students could get jobs, and even though they were marginal, they were still there in the system. But I think the problems facing intelligent design are much more radical institutionally.

Q. And in that regard, do you see the nature of the opposition or the resistance as different in kind in terms of metaphysical or ideological dimension?

A. Yes, that's true.

Q. Explain that just generally.

A. Well, I think generally it's -- the religious motivation ends up blocking people from taking the theory seriously. And, in fact, intelligent design has some very natural affinities with a lot of things going on in computer-driven forms of artificial life and artificial intelligence research that, in fact, there could be some alliances forged there.

But I think at the moment, because it's so -- there's such restricted access to it and there are so few people who have an incentive to work on it, that it isn't able to develop those kinds of connections. And so that's why I would say it does need to be mainstreamed.

Q. Mr. Walczak asked you some questions about a piece authored by Behe. And I want to see if I understand or if you need to further explain your position. In terms of the dichotomy between context of justification and context of discovery, from the bit of Behe's article that you looked at, what do you see Behe discussing there?

A. The context of discovery. And the word "plausibility" suggests that to me. He says what would make it plausible, right, to adopt an intelligent design position would be if you believe in the existence of God. He's talking about the context of discovery, how would one use that as a heuristic for doing research, who would be more attracted to it. But he's not saying anything about how it would be validated.

MR. GILLEN: I have no further questions, Your Honor.

THE COURT: Thank you, Mr. Gillen. Mr. Walczak, recross.

MR. WALCZAK: Just a few.



Q. Dr. Fuller, you're making a distinction in these theories between the discovery phase and the justification phase?

A. Correct.

Q. And see if I understand this. Discovery is sort of the formulation of the idea and you throw it out there?

A. Yes. And it's how you come to the idea. So, you know, what gets -- yeah.

Q. It's the hypothesis?

A. Hypothesis formation, formation.

Q. And the justification is the test, that's where you subject it to empirical testing?

A. That's basically it.

Q. And, now, are you aware that young earth creationists had a scientific component to their theory?

A. No, I'm not aware of that.

Q. Have you ever --

A. I guess I'd like to know what it is before I agree that it was scientific, at least by the likes I've been using it.

Q. And I believe in your expert report you may have referred to Edwards versus Aguillard?

A. I referred to it somewhere, but I don't know if it was in the expert witness report.

Q. You're familiar with that?

A. Yes, I am familiar with that.

Q. And that case involved something called creation science?

A. Yes.

Q. And is it your understanding that they were justifying creationism in the coin of science?

A. Well, I actually don't have enough on-the-ground familiarity to know whether they -- I mean, whether this was just a fig-leaf term "science" or whether there was anything resembling what we would call science there. So I can't really -- you know, I mean, they may have been trying. I mean, obviously using the word "science" suggests they were trying, but whether it would pass my criteria of what science is is another matter.

Q. And what I think I just understood you to say is that in terms of all of these statements that we've shown to you that you've testified about in terms of creationism sharing some concept, some verbiage with intelligent design, that's all on the discovery side of the equation?

A. Yes. I mean, there's not that much verbiage, actually, between creationism and intelligent design these days, even. I mean, maybe some motivational things, but in terms of even how the hypotheses and theories are formulated in the research programs, there's not a lot of overlap in the language.

Q. But the way you've explained all of the statements I read back to you where you were equating intelligent design with creationism, say in this 1998 article, you're saying that's on the discovery side of it?

A. Yes.

Q. So that's in the idea formulation phase?

A. Yes, what's motivating people, yeah, the things that are animating their imaginations.

Q. But on the justification side when it comes to intelligent design, that's the scientific testable side?

A. Yes.

Q. And intelligent design has not yet made its case on the justification side?

A. No, because it's not sufficiently developed yet. You actually have to have more theory developed, you have to have more interpretation of existing phenomena to then be able to develop the appropriate kinds of tests.

Q. And intelligent design has been around for almost 20 years. Is that correct?

A. Has it? That sounds a bit long to me, but --

Q. If Of Pandas and People was first published in 1989 --

A. With all due respect, that's a textbook. I mean, you don't use a high school textbook as a benchmark of what science is.

MR. WALCZAK: I have no further questions.

THE COURT: All right. That will conclude your testimony, Doctor. We thank you.

THE WITNESS: Thank you.

THE COURT: You may step down. We have a couple of exhibits which we should take now. We have, on direct, the CV, which is D243. Move for the admission of 243?

MR. GILLEN: I do, Your Honor.

THE COURT: Any objection?

MR. WALCZAK: No, Your Honor.

THE COURT: D243 is admitted. On cross we have the article by the witness that's P787. Are you moving for the admission of that, Mr. Walczak?

MR. WALCZAK: Yes, Your Honor.

THE COURT: Any objection?

MR. GILLEN: Well, actually, no, I guess not. That's fine.

THE COURT: It's his own article.


THE COURT: Well, then without objection, P787. Have I missed anything from either plaintiffs' or defendants' standpoint? Any exhibits?

MR. WALCZAK: I have 788 as not in, Your Honor, the First Global Cyberconference.

MR. GILLEN: Likewise, no objection to that, Your Honor.

THE COURT: That's admitted. P788 is admitted.

MR. WALCZAK: I believe that's it, Your Honor.

THE COURT: All right. From defendants' standpoint, any additional exhibits?

MR. GILLEN: Not at this time, Your Honor.

THE COURT: For this witness. All right. Well, I guess we're going to pick up the testimony of the assistant superintendent, but it's late in the day. It seems late to endeavor to start that. Do you agree?

MR. GILLEN: I do agree, Your Honor. Could we have a sidebar?

THE COURT: You may. Thank you.

(The following discussion was held at sidebar:)

MR. GILLEN: Your Honor, as Liz is bringing the hammer down, I have reluctantly agreed to do Friday and Monday. I wanted to meet with you to ask your forbearance. Bill Buckingham is coming Thursday. The reporters are scheduled for Thursday. I see Mike Baksa continuing on Friday. I will do my best to prepare another witness for that day, and I know I can get someone here, but I might not be able to fill the whole day.

THE COURT: I understand that. I told Liz that that's no harm, no foul. I don't want to put you in a difficult spot. These are days I can open up. And I really would like to not extend past next week, and so I thought the greater caution would be to open the days up, if that's acceptable to everybody. And if you can't fill a day, that's fine. I hope you'll try.

MR. GILLEN: I will try, Your Honor. I want this over as much as the next one.

THE COURT: I have a creeping concern which hasn't elevated to the point of hysteria. Perhaps it is for Liz, but not with me. And that's why we're opening up these days. If we end up with an early quit on Friday -- I was going to be here doing case management conferences anyway. It seems absurd for me to spend time doing that when we could open up a trial day. Monday I had a sentencing hearing all day, and it was not a problem to move that to next month. I know you have travel issues and other things, and I don't want to put you in a difficult spot, but on the other hand --

MR. GILLEN: All good things must come to an end.

THE COURT: Yes. But it seems to me that the plaintiffs have been good about --

MR. GILLEN: They have.

THE COURT: -- taking witnesses out of order. And if we shuffle Baksa back in the deck, I don't think that that's going to be a problem for you.

MR. ROTHSCHILD: And if we end a little early on October 31st so I can get home for trick or treat, also no objection.

THE COURT: I'm past trick or treat.

MR. ROTHSCHILD: You can come to my neighborhood.

THE COURT: What costume would I wear?

MR. GILLEN: But that was my request, and I thank you, Judge, for your forbearance.

MR. WALCZAK: I don't know how long you expect Mr. Buckingham to go on Thursday, but I don't know that the reporters are going to take a half a day, so we may have some time Thursday to finish Baksa.

MR. GILLEN: Okay. And I frankly can't be sure. I think Mike is -- my guess is, just because of the paper that he's responsible for, will take the morning and maybe just a little bit of the afternoon on Friday.

MR. WALCZAK: On direct.

MR. GILLEN: Yeah. There's just a lot of paper with him. He was the gatekeeper.

THE COURT: Who is that?

MR. GILLEN: Mike Baksa.

THE COURT: So Thursday you anticipate doing what?

MR. GILLEN: Buckingham, the reporters, and if I have to do Mike, I guess I'll try and --

MR. WALCZAK: The other option is -- and I've talked to Niles Benn, and he said the earliest he could do it is the 27th -- we could do the reporters later.

THE COURT: No, get Benn while you can. I don't want to get another call from Benn. We're going to get Benn here. You told him Thursday, you're going to do the reporters on Thursday. I don't want --

MR. GILLEN: Thursday it will be.

THE COURT: I don't want another excuse as to why he can't come in here, medical or otherwise. If I have to get an ambulett to bring Mr. Benn in, we're going to have the reporters' testimony.

MR. ROTHSCHILD: The other thing is, I think we still have to do the Nilsen exhibits. We can do that on Thursday or Friday, as well.


MR. WALCZAK: We have the expert exhibits. We have Padian, Miller.

MR. GILLEN: Right.

THE COURT: We'll take care of that. But we'll open it up for Friday, for the 28th, and Monday the 31st. And Liz will execute me for saying this, but if worse came to worse, I mean, I can't make you do what you can't do, and if you don't finish by the end of next week, I'm going to let you try your case, and I'll have to do what I have to do, so you understand that.

I'm just trying, as much as I can, given everybody's schedules -- you know, I want to give everybody an opportunity to put their case on, so if we have to go further, we'll go further. But I'd like to try to add days within the weeks that we set rather than to add them --

MR. GILLEN: I appreciate the consideration.

THE COURT: I have my whole docket being compressed back to the end of the year, and I'm supposed to start criminal trials that following week.

MR. GILLEN: I feel like my whole life is being compressed.

THE COURT: I feel similar. All right. Thanks, fellows.

MR. WALCZAK: Thank you.

MR. ROTHSCHILD: Thank you.

(The discussion at sidebar was concluded.)

THE COURT: All right. The consultation with counsel at sidebar was for the purpose of scheduling. Let me make this announcement. We are now, with the cordial agreement of all counsel, going to -- in addition to the trial date previously scheduled for October the 27th, which is Thursday, we will now sit on Friday for as long as we can. It may be a full-day session or it may not, depending upon the availability of witnesses on somewhat short notice. So we will sit on Friday the 28th.

We will likewise sit on Monday the 31st of October. We're adding that as a trial day next week, as well. I think that is our fourth trial day now next week. I think we had previously scheduled three trial days. Am I correct, Counsel?


THE COURT: So that will add day four in an effort to conclude this matter by the end of next week, if at all possible, with the cooperation of counsel and the parties. So we'll have two more trial days this week, one more the following week. We have a total of three this week and then four next week.

With that, we'll then adjourn today, and we will be in recess until Thursday morning the 27th when we will reconvene at 9:00 a.m. on that day. We'll see you then. Thank you.

(Whereupon, the proceedings were adjourned.)


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