Any test of the legality of teaching a form of creationism as science in public schools will hinge on demarcation of science and religion. My reading of the Kitzmiller decision is that demarcation was much more important than the specifics of science and pseudoscience entered into evidence. For instance (pp. 67-68),
It is notable that defense experts’ own mission, which mirrors that of the IDM [ID movement] itself, is to change the ground rules of science to allow supernatural causation of the natural world, which the Supreme Court in Edwards and the court in McLean correctly recognized as an inherently religious concept. Edwards, 482 U.S. at 591-92; McLean, 529 F. Supp. at 1267. First, defense expert Professor Fuller agreed that ID aspires to “change the ground rules” of science and lead defense expert Professor Behe admitted that his broadened definition of science, which encompasses ID, would also embrace astrology. (28:26 (Fuller); 21:37-42 (Behe)). Moreover, defense expert Professor Minnich acknowledged that for ID to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural forces. (38:97 (Minnich)).By the way, we all laugh at Behe now, but he is really no worse a philosopher than the majority of scientists. I shudder to think how the trial would have gone if Pennock and Forrest had dropped out, and a couple of "philosophy is bullshit" scientists had testified that science proves naturalism true.
Prominent IDM leaders are in agreement with the opinions expressed by defense expert witnesses that the ground rules of science must be changed for ID to take hold and prosper. William Dembski, for instance, an IDM leader, proclaims that science is ruled by methodological naturalism and argues that this rule must be overturned if ID is to prosper.
So what is the most dangerous innovation of ID creationism? The movement stopped trying to overturn methodological naturalism, and adopted a new perspective on the nature of nature. The physical Universe is now comprised not just of matter and energy, but also of information. There is conservation of mass-energy, but not of information, which is created (only) by non-material intelligence. Six years ago, the design inference was to non-natural (i.e., supernatural) cause, and mainstream scientists were denigrated as naturalists. Now intelligent design is a non-material, though natural, cause, and mainstream scientists are denigrated as materialists.
The change in ontology makes IDC much more slippery than it was in Kitzmiller. On a verbal level, IDC has stepped entirely within naturalism. It does not obviously appeal to supernatural explanations. Many physicists accept the notion that information is in some sense physical. Thus it is much harder today than it was six years ago to argue that IDC is not science and that teaching of IDC as science does not serve a secular purpose.
Of course, most of us regard an unobservable entity that creates physical stuff, whatever it may be, out of nothing as supernatural. But we really should worry about a judge who is disposed to accept intuitively that people are creative, and that what they create by virtue of intelligence is not matter, but the information that gives form to matter. On the face of it, this does not seem a religious claim. And when IDCists say they can measure the information created by intelligence, citing the peer-reviewed publications of Dembski and Marks, it does not seem an unscientific claim. I believe that it is of the utmost importance to develop a simple explanation of why such a seemingly innocent notion of creation of information must be regarded as supernaturalism.