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On the morning of Dec. 20, Pepper Hamilton attorneys Eric Rothschild and Stephen Harvey were concerned with one thing. The decision for the case they invested more than a year handling — a case the country spent weeks watching unfold — was about to be issued by U.S. District Judge John Jones III. “We were cautious because you have to be cautious,” Harvey says. He and Rothschild, lawyers in Pepper Hamilton‘s Philadelphia office, represented 11 parents in the case who fought to keep the teaching of intelligent design out of their schools. Although they didn’t throw caution to the wind, the attorneys felt confident that they presented a strong case over the course of the six-week bench trial. “Our primary concern was what time the ruling came down,” Harvey says. People in the firm created a pool to guess what time the opinion would be issued, but no one actually got around to laying down the money to back up the bets. That turned out to be unfortunate for Harvey, who guessed 10:30 a.m. The opinion came down at 10:36 a.m. It is probably safe to say that the ruling was the bigger reward. They may joke around in Pepper Hamilton’s Philadelphia office, but the attorneys take the message of the case just as seriously now as they did before the judge. When given the chance to talk about their efforts in Kitzmiller v. Dover Area School Board, Rothschild and Harvey quickly reiterate the plaintiffs’ argument — one they seem to hold just as strongly. “The science is just a façade, a Potemkin village,” Rothschild says. He says the biggest challenge for his team was deconstructing the defense’s argument that intelligent design is a science. “The argument that intelligent design qualifies as science is incredibly weak,” Harvey says. “Intelligent design doesn’t even qualify as bad science; it’s not science. “They have manufactured a controversy in the public arena and then insisted that it should be taught,” he continues. THE PUBLIC EYE The public arena is exactly where these two attorneys can be found in the coming weeks and months. They say they have been spending their time since the trial doing interviews for radio, TV, and newspapers. Their calendars are now full with speaking engagements. The next scheduled talk, and by no accident, will be in Kansas, where an intelligent design battle is brewing. Religion has a firm place in both attorneys’ personal lives, and they say this case was meant to protect religion. For them it was about protecting the First Amendment and the separation of church and state, they say. “The right to believe includes the right not to believe,” Harvey says. Rothschild and Harvey dismiss intelligent design supporters’ argument that Jones’ strongly worded decision in the case is supportive of dogmatism. “There is nothing about this judge’s decision that will stop experts from doing whatever they want in their labs,” Rothschild says, but he adds that only the fundamentals should be taught in public schools. “Nobody is teaching alchemy in chemistry class so students can get another viewpoint,” he says. The wording of Jones’ opinion attracted just as much attention at times as the decision itself. Jones criticized the school board for its policy and for bringing the community into this “legal maelstrom.” He also went into a lengthy discussion of the history and meaning of intelligent design, which some groups criticized as being activist. Rothschild and Harvey are quick to jump to the judge’s defense. “Both sides really asked this judge to decide whether intelligent design was science or religion,” Rothschild says. “He did not reach out,” Harvey notes. “The parties put that in front of him.” Rothschild says that other harsh wording in the opinion was a reaction to what he called the dishonesty of the school board throughout the trial. With most of the original school board voted out, Harvey says the possibility of an appeal is very unlikely. There could be an intervening party that would bring the appeal, but he thinks that is doubtful, as well. That means this case will most likely stand as a trial court opinion that is not binding on any other state. Rothschild says he hopes it will be a message, however, for other school districts attempting to implement intelligent design into their curricula. “This is a lesson in bad civics, the way the school board acted through this whole process,” Harvey says. DOWN THE ROAD There are a few cases, in Kansas and Georgia, where intelligent design could soon be tested. Harvey says that even if someone brought a more cautious case that excluded a discussion of the flaws of evolution, the individual would face the same strong evidence. “There is virtually no dissent in the scientific community,” Harvey says. “They’re still going to be faced with the overwhelming evidence that this is wrong.” “We certainly know where all the bodies are buried now in terms of these creationist arguments,” Rothschild says. There are certainly a lot of people who know where to find Rothschild and Harvey, as well. Rothschild says he gets an e-mail about every hour from scientists expressing their gratitude. He also received a call from Ellory Schempp, the boy at the center of the school prayer controversy in 1963 in the local case Abington v. Schempp. Now grown, Schempp called to thank the plaintiffs’ counsel for their efforts. “Are we a little bit famous now?” Rothschild asks. “Yeah, and it’s amazing.” “We are getting very good notoriety out of this, and we enjoy that,” Harvey says, adding that they hope to get additional important cases from their work on this case. Both agree that they would take on other cases of this magnitude, but for now they have their paying clients to attend to. Rothschild says what he was proudest of throughout this whole trial was his cross-examination of defense expert Michael Behe, a professor at Lehigh University and a proponent of intelligent design. Rothschild says he knew what he was talking about when he moved to the witness stand, and he owes that to the National Center for Science Education, which thoroughly explained intelligent design to the plaintiffs’ team. The attorney says the plaintiffs in the case felt incredibly vindicated. There were hugs all around when they filed into a Harrisburg press conference. The case changed the lives of those directly involved. Some of the plaintiffs now vacation together, the attorneys’ families now have more knowledge of intelligent design than they ever expected, and the books usually on Harvey’s nightstand have been replaced by one written by Charles Darwin. Rothschild and Harvey say they feel connected to this controversy and will not stop their involvement with it now that the case is over. “It’s not the last you’ve heard from me and Steve on this,” Rothschild says.
Gina Passarella is a reporter for The Legal Intelligencer , an ALM publication based in Philadelphia, where this article first appeared.

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