Taking Darwin Down
Legal Times (http://www.legaltimes.com)
For three days in May, a parade of experts and advocates for intelligent design
appeared in front of the Kansas Board of Education, pushing for a new science
curriculum that casts doubt on the theory of evolution.
Outside the 180-seat Topeka auditorium, Darwin backers boycotted the event,
denouncing it as a “kangaroo court” and dismissing proponents of intelligent
design as cranks and charlatans. But a key legal adviser for the witnesses inside
hardly fit that mold. He was Edward Sisson, a partner at Arnold & Porter.
The D.C. firm is well known for its work on progressive causes, including the
landmark decision on indigent defense, Gideon v. Wainwright, the 1963 Supreme
Court decision that established that poor defendants have a constitutional right
to counsel. The story of its ’70s-era lawsuit against a coal company on behalf of
flood victims in West Virginia is required reading in law schools. And in its pro
bono work, the firm has been a faithful supporter of liberal organizations such
as NARAL Pro-Choice America and Americans United for Separation of Church and
“I am clearly on what is the minority side,” Sisson says.
But in recent months, Sisson has placed himself, and the firm, at the forefront
of one of the most divisive issues in America’s culture wars, appearing on CNN
and taking on clients challenging one of science’s most established theories.
“So often this issue is treated as Christian Bible Belt fundamentalists seeking
to insert Bible literalism into the classroom,” he says. “I see here a very
credible, real debate on the merits of the math and science of evolution.”
That a man from a firm with a strong liberal tradition could become an advocate
for one of the major issues for the religious right is, to say the least,
unusual. Sisson’s work created something of a stir inside his firm when another
partner Ã¢â‚¬â€ who had helped Sisson prep for the hearings Ã¢â‚¬â€ sentent around an e-mail
trumpeting Sisson’s participation in the Kansas hearings. The responses were less
than enthusiastic, questioning how Arnold & Porter could possibly be representing
a position that many in mainstream science have dismissed as quackery.
Sisson didn’t blink. He fired off a 17-page memo defending his work. The
questions were dropped.
“People think of us doing blue-state pro bono work, and here we were doing
red-state pro bono work,” says Philip Horton, co-chair of the pro bono committee
at Arnold & Porter. “I was actually happy that this case came to us. Part of the
point is that we are able to represent all sides.”
Sisson, 50, doesn’t view his representations as anything out of the ordinary,
likening his work for the scientists and experts espousing intelligent design to
the firm’s legacy defending those targeted by Sen. Joseph McCarthy in the 1950s.
“I wouldn’t say that these scientists are being inflicted to the same degree as
under McCarthyism,” Sisson says. “But it is similar in that people are having
their character challenged because of the beliefs they have taken on personal
Intelligent design holds that the earth’s complexity could not have been formed
without the aid of an unseen designer. Over the past dozen years proponents of
what is often labeled “ID” have pushed state school boards across the country to
include criticism of Darwin’s theory in their science curricula.
An important test case on intelligent design is set to hit the courts this fall.
It’s a challenge to a Dover, Pa., school district rule requiring that students be
informed about intelligent design during biology class.
Which is why Sisson believes his work is at a critical stage. In addition to
participating in the Kansas hearings, he has taken on other cases he hopes will
turn the debate over intelligent design from one of religion versus science to
what he believes should be viewed as competing scientific theories.
The problem, from Sisson’s perspective, is that Darwin’s supporters are not
“opening themselves up to cross-examination.”
To that end, he helped write an amicus brief on behalf of the International
Society for Krishna Consciousness of Atlanta in the upcoming appeals court case
of Selman v. Cobb County School District. The appeal seeks to overturn a lower
court ruling that stickers on textbooks questioning evolution’s validity are
“If what was going on here was really an attempt to establish Christianity in the
schools, why would the Hindus be saying this?” Sisson says.
That’s also why he’s taken on the case of Caroline Crocker, a 47-year-old
biologist who taught at George Mason University until May. Married to an
Episcopal minister, Crocker taught a cell-biology course each term until the end
of 2004. That December, she claims, she was barred from teaching the course
because a student had complained that she was teaching creationism. (The
university declined to comment.)
The complaint, Crocker claims, stemmed from a lecture she taught each semester,
in which she “talked about the evidence for and against [evolution]. What I was
trying to tell the students is that if we don’t open our eyes and look at the
evidence, science won’t go forward,” she says.
Crocker says she filed a grievance but was turned down. Sisson has sent a letter
of protest to the university.
Though Arnold & Porter is supporting Sisson’s work, it may have caused a headache
for at least one partner. Murray Garnick represents Americans United for
Separation of Church and State in two cases challenging government faith-based
initiatives. Garnick has also expressed interest in working with the organization
on opposing intelligent design, says Ayesha Khan, the group’s legal director.
But, says Khan, “there was some concern about there being conflict.” (Garnick
declined to comment.)
Being an iconoclast is nothing new for Sisson. Two decades ago, as a newly minted
Massachusetts Institute of Technology graduate, he quit a master’s program in
architecture to run a small avant-garde theater company in San Francisco. For the
rest of his 20s, Sisson embraced the life of the arts, hustling between openings
and rehearsals, overworked and underpaid. He lived in the Haight-Ashbury
neighborhood and, later, on a houseboat in Sausalito.
Eventually, he joined George Coates, an experimental director known for his
high-tech, multimedia performances. The theater group’s work caught the eye of
the U.S. State Department, which, in 1987, funded it in a tour of Eastern
European theater festivals.
It was on that trip that Sisson began his political drift to the right. Though
he’d been horrified by the ongoing Iran Contra scandal, he was impressed that a
free society could expose corruption of such magnitude. He was struck by the
contrast between America and the governments in Poland and Yugoslavia.
Inspired, Sisson, at 33, headed to law school at Georgetown University. After
graduating, he clerked for a federal judge and then landed a job at Arnold &
Porter. There he became a star associate, coordinating the Winstar litigation, a
series of lawsuits against the federal government seeking damages for its
involvement in bailing out savings and loans during the 1980s.
But Sisson retained a penchant for unconventional and unusual ideas. So when he
ran across an article claiming that evolution by natural selection might be all
wrong, he took notice. “When someone comes along and says a widely held theory is
probably incorrect, that’s an interesting assertion,” he says.
He was influenced by another consideration: His two children, then 5 and 4, were
nearing school age and he wanted to make sure what they would be taught was
Sisson has never been particularly religious Ã¢â‚¬â€ he calls himself a “three times a
year” Episcopalian Ã¢â‚¬â€ but he was hooked. He devoured book after book by Darwinian
critics such as William Dembski and Michael Behe, as well as writings on
microbiology and the history of scientific thought.
Soon, Sisson struck up a correspondence with Dembski, who asked him to write a
chapter for a 2004 anthology, Uncommon Dissent: Intellectuals Who Find Darwin
A NUMBERS GAME
Sisson’s office at Arnold & Porter is plastered with photos of his children. A
billboard from one of his theatrical shows with Coates hangs on the wall. But
during a recent interview, what Sisson really wanted to show off was his book
With little prompting, he began enthusiastically pulling volume after volume off
his shelf. Each appeared well worn and heavily annotated. He turned to the text
of The Mathematics of Evolution, a book by Cambridge University professor Fred
Hoyle, which argues that the statistical probability that random processes
explain all of evolution is so improbable as to be impossible.
To illustrate Hoyle’s point, Sisson jumped out of his seat and strode over to a
long, thin strip of paper mounted to the top of his mahogany-colored bookshelf.
On it was an equation. On one side was the exponent 10 to the negative 150; on
the other, a number starting with a decimal point followed by a string of 148
zeros and ending with a one.
Sisson had prepared the diagram for his cross-examination of the Darwin
supporters in Kansas, but because they boycotted the hearings, he never got a
chance to use it. So this was his moment.
“Here’s what I want to do in cross-examination,” Sisson explained, pointing
forcefully to the number with 148 zeroes.
“I want to say ‘1.0 means certainty.’ If the chances are certain, a 100 percent
positive, then it’s 1.0.” He moved his finger over a notch to the right. “If the
chances are 1 in 10, then we’ve got two zeros.”
And over another few spaces.
“One in a thousand.”
Sisson continued along the string of zeros until he reached the end of the
number. There, displaying the kind of enthusiasm usually shown by sports fans
after an overtime win, he declared, “But we are here,” pointing at the
infinitesimal one. “This is the probability that DNA developed by chance.”
Sisson began moving his hand back up the row of zeros. “Do you have any
scientific explanation for a calculation that moves this one even half the
distance to here? To here?” he said, going a little farther up the row. “That
moves it into a range [of probability] that people normally would say, ‘You know,
it could have happened that way.’ ”
He knows what his critics argue. “They say you can’t calculate the probability
that something happened unless you have the steps by which it happens,” Sisson
says, as if repeating a well-worn refrain. But he remains unshaken in his faith
that Darwin will one day be disproved.
“The interesting question becomes: How could it be that everyone could be wrong?”
Emma Schwartz can be contacted at firstname.lastname@example.org.