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For Philly Lawyer, Landmark Win Was a Case of ‘intelligent Design’

December 28, 2005
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He’s just won one of the biggest courtroom duels over evolution since the seminal Scopes Monkey Trial of 1925, but Eric Rothschild hasn’t had the time yet to relax. Since a federal judge ruled Dec. 20 that a Pennsylvania school board acted unconstitutionally when it ordered inclusion of “intelligent design” in its schools’ science curricula, the Philadelphia attorney has been busy fielding media inquiries, lining up speaking engagements and making up for the 1,200 hours he spent working on the case pro bono.

Still, sitting back Tuesday in an elegant conference room at the law firm of Pepper Hamilton, with an expansive view below of the city in which the Constitution was written, Rothschild puts the legal victory in perspective, expounding not only on what drew him to the case but also on how his Jewish background made it personal.

The principle of church-state separation “is a core constitutional principle that requires protection,” says the bespectacled Rothschild, a 38-year old Reform Jew.

“I do think that I’m probably particularly sensitive to intrusions on this constitutional right because of being part of a minority religion,” he says. “I think the Jewish religion, Jewish practice, has thrived and felt a sense of security in this country because we really do have such a good structure for protecting religious freedom.”

That structure works, says Rothschild, who was lead counsel for the plaintiffs in the case, along with Pepper Hamilton partner Stephen Harvey.

“I think if we were to allow science classes to become an arena for teaching creationist views, I might feel very differently,” he says.

Intelligent design refers to the notion that the universe is so immensely complex that it must have been created by some intelligent force. Proponents say the idea should be presented alongside evolution in science classes. Opponents say it’s nothing more than creationism in a secular cloak.

Rothschild’s father, who grew up in an Orthodox home, left Germany with his family in the late 1930s. Rothschild’s mother grew up in a more secular Jewish household. His upbringing was “a compromise between those two experiences.”

One element of this upbringing was what Rothschild says was a particularly Jewish focus on “examination and reason.” This focus is part of what drew him to issues like church-state separation.

In 1999, the Kansas Board of Education voted to remove evolution from public school science classes. Concerned, Rothschild began doing volunteer work for the National Center of Science Education, an evolution watchdog group. He since has served on the group’s legal advisory panel.

As soon as he learned through the center of the intelligent design case in Dover, he was interested. He ran the idea by Pepper Hamilton’s pro bono committee, which approved the idea.

Thus began a 14-month odyssey during which Rothschild, who usually tries commercial litigation cases, prepared for and argued the intelligent design case under national media scrutiny.

“It’s a hot issue,” he says. “It got hotter as the year went along.”

“There are very few instances where lawyers get lofted up on this platform,” he adds — noting that it’s not a position he minds.

Since taking on the case, Rothschild has been the subject of newspaper articles, appeared on the “NewsHour with Jim Lehrer,” the public television show, and — what he calls the coup de grace — had a full-page caricature drawn in The New Yorker magazine. His parents recently gave him a framed copy of the drawing for Chanukah.

Rothschild sought out experts in biology, paleontology, theology and philosophy. Then there were the eight families who were the case’s plaintiffs. Some of these parents were devout Christians who taught in Bible schools and believe in the idea of intelligent design; they just oppose its inclusion in public schools.

“The conviction and intelligence they brought to this always amazed me,” Rothschild said.

Harvey, who served as Rothschild’s co-lead counsel on the case, is a Catholic. While the lawyers’ different backgrounds actually helped them in approaching this case, Harvey said, he also realized how much Judaism and Catholicism have in common.

After a recent conversation with a rabbi following a speaking engagement, Harvey said he came to realize that the Catholic and Jewish views on creation are largely similar.

“We believe, essentially, in theistic evolution,” he says. “We believe that God is the creator of all things, but we’re not necessarily convinced that he micro-managed.”

Rothschild said the team’s toughest challenge was facing down the “pretty impressive scientific facade” that intelligent design proponents have built up over the years.

In his closely watched decision, U.S. District Judge John E. Jones III said the school board’s claim that the move was meant to bolster science education through inclusion of alternate theories to evolution was simply a cover for its religious motives.

Some of the school board members had made statements about their religious beliefs to the media, making Rothschild’s job a bit easier.

Still, he says, even “if this board had been more circumspect or better at covering it’s tracks, it wouldn’t have changed the fact that it was unconstitutional.”

“This will not be the last case of this nature,” Rothschild says. “I think that future school boards and school districts aware of this decision have to think very carefully about whether they want to put their communities through this.”

Susan Low Bloch, a professor of constitutional law at the Georgetown University Law Center, said it makes sense that Rothschild and Harvey approached the issue on two fronts: taking on intelligent design itself and attacking the school board’s motives.

Ferreting out the board’s purpose “is an important part of the test,” she says. “If you have a religious purpose, it’s almost impossible to uphold.”

Rothschild disagrees with those who say that forbidding the teaching of intelligent design in public schools is an assault on religion.

“I think this case is very pro-religious,” he says. “Our structures support a protective sphere of private religious practice. It is really about the separation of church and state, not the destruction of church.”

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