In the parlance of the sports world, defense attorneys in the federal "intelligent design" trial will have to come from behind when testimony resumes this week.

They'll have a tough time overcoming the first week of testimony, in which plaintiffs and former board members from Dover Area School District said the school board was motivated by religion when it changed its biology curriculum last year.

The case pits the school district against 11 plaintiffs, who believe that intelligent design -- a concept that says biological complexity presents evidence of a designer -- is a Trojan horse that brings God into public schools.

First Amendment professors and constitutional law attorneys following the case seem to agree. After the trial's first week, it appeared that certain board members were motivated by religion, and not an educational purpose, when they amended the curriculum to include intelligent design.

"I would certainly say that from what I have seen thus far, I find the evidence troubling," said Valerie Munson, an Eckert Seamans attorney who specializes in church-state issues. "The school board's policy will probably be found to have a religious purpose, and to advance religion, in violation of the First Amendment. In other words, it [will] fail both the purpose and the effects prongs of the constitutionality test."

But she also adds that the trial, expected to last more than five weeks, is in its early stages, and the defense team, Thomas More Law Center of Michigan, has yet to offer any evidence. "Cases are never a slam dunk," she said. "If they were a slam dunk, they would never be going to court."

U.S. District Judge John E. Jones III is being asked to apply the two-pronged test to this case, in which the plaintiffs claim the Dover board violated the Constitution's establishment clause.

The first test is the "effect" test -- whether the theory itself, and its appearance in the ninth-grade biology curriculum, is religious in nature. In other words, to be legal, intelligent design must neither promote nor inhibit religion.

The second test can be called the "intent" test -- even if the judge does not determine that intelligent design is an inherently religious concept, he may find that the school board had the purpose of promoting religion. In legalese, the school board must have a bona fide secular purpose in teaching intelligent design.

The plaintiffs' attorneys, including the American Civil Liberties Union and Americans United for the Separation of Church and State, must win just one of these match-ups, not both. A third prong, the "entanglement" test, is not being applied.

As with the criminal court system, the burden of proof lies not with the defense, but the plaintiffs. The plaintiffs are striking blows on both sides -- using expert witnesses to argue that intelligent design isn't science and using witnesses to show that school board members wanted to bring God into the classroom.

The expert witnesses -- two biology professors and a theologian -- have testified to the "effect" side of things, arguing that intelligent design, because it infers a creator from biological evidence, is biblical creationism, updated with new scientific terminology.

But the fact witnesses, testifying to the "intent" test, have provided the most compelling evidence, said Eugene Voloch, First Amendment professor at UCLA. The courts, he said, have left the door open for "intelligent design" in a perfectly crafted test case, but this isn't such a case.

The school board, based on what he's read, was "animated by a desire to promote the biblical account" of creation. This week, plaintiffs testified that, over a two-year period, the school board intermittently discussed God, religion and creationism, before finally changing the biology curriculum in October 2004. Board meetings were like "old-time Christian tent revivals," a former school director testified.

"It's conceivable that if the court was looking only at the 'effects' test, the board might have a shot," Voloch said.

Marc J. Randazza, an attorney with Florida-based Weston, Garrou, DeWitt & Walters, a First Amendment law firm, agreed with his colleagues.

"The first problem I see is testimony that clearly demonstrates that the majority's motivation was to promote the Christian [theory] of creationism. Although there has been some attempt to characterize this as promoting intelligent design as a means of offering an alternative theory to Darwinism, I can't see a shred of honesty in this characterization."

He said the plaintiffs also win the "effect" challenge, but not as convincingly.

First Published: October 2, 2005, 4:00 a.m.