Re: Judge Jones sided with the Discovery Institute and ruled against the Dove...

From: David Opderbeck <>
Date: Thu Dec 29 2005 - 16:30:03 EST

*What the court stated is that the finding that ID is not science was
essential for its ruling on the establishment clause.
Unfortunately, it seems this discussion is getting nowhere. I've
demonstrated why this assertion is false, both as a matter of substantive
law and as a matter of common judicial practice. You can keep asserting it,
but it will still be false.

On 12/29/05, Pim van Meurs <> wrote:
> >Pim -- the fact that an argument is raised in an amicus brief is
> irrelevant. A judge doesn't have to consider an amicus brief, and indeed
> doesn't even need to address in detail an argument >raised by a
> party-litigant. I've been in many cases in which the judge said, "I've read
> x's argument concerning y, and find I do not need to address it because of
> z." If trial judges had to >address in detail every argument ever raised in
> a case, they'd never sleep and would decide maybe two cases a year.
> Let's look at this step by step. First both plaintiffs and defendants
> agreed that the Lemon test should apply, the defendants objected to the
> endorsement test. The judge looked at the three prongs of the Lemon test.
> The first prong is secular purpose. Since the argument proposed was that
> ID's primary effect is not necessarily religious because it is science, it
> behoves the judge to address this point. The legal landscape surrounding the
> establishment clause is in severe flux and while the judge need not address
> all aspects, courts often in an attempt at completeness look at various
> tests and all the prongs involved. Even if one part fails, the ruling will
> still stand based on the other parts. In this case, the purpose prong
> required the court to find that the board's motivations were religious but
> that itself may not be sufficient if the defendants were to argue that their
> purpose was scientific.
> >Further, you are wrong about how the Lemon test works. The party
> challenging a state action under the establishment clause does* not* need
> to prove that all three prongs of the *Lemon* test >have been
> "satisfied." Rather, the party challening a statute on establishment clause
> grounds must demonstrate that the statute fails under *any one prong* of
> the Lemon test. If the statue >does not have a secular legislative purpose,
> or the statute's principal or primary effect is one that inhibits or
> enhances religion, or the statute fosters an excessive entanglement of
> governement >with religion, the statute fails. For example, a statute with
> an entirely secular legislative purpose that nevertheless has the effect of
> "enhancing religion" would be unconstitutional. Likewise, a >statute that
> has a primarily religious purpose fails, period, regardless of the effect
> and entanglement prongs.
> I understand very well that the Lemon test means that failure of any test
> is sufficient. But basing one's ruling on a single prong seems unwise when
> the legal landscape is so much in flux when it comes to Lemon. In other
> words, for completeness the court decided to rule on all prongs and aspects.
> This is hardly uncommon in establishment clause cases.
> >Indeed, the Supreme Court did exactly this in the *Lemon* opinion
> itself: it found that the education policies at issue in that case had a
> secular purpose, but that the policies nevertheless failed >under the
> "entanglement" prong.
> I do not contend this.
> >Finally, even if the court had desired to address all three prongs for
> the sake of completeness, which is not unusual, the discussion of what
> constitutes "science" was unnecessary under any >prong of the *Lemon*test. You seem to assume that if the court found ID were "science," it
> would automatically pass prongs 2 and 3 of *Lemon*. Why? Under the *
> Lemon* test, a statute >could have a scientific basis or purpose, and yet
> have the effect of enhancing religion or fostering an excessive entanglement
> with religion.
> Not at all. I am merely pointing out that ruling on all three prongs is
> hardly unusual. What the court stated is that the finding that ID is not
> science was essential for its ruling on the establishment clause.
> >Say, for example, that a state decided to conduct an experiment
> concerning whether children who recieve religious instruction in school
> score higher on standardized tests. Assume further >that the motivation for
> the experiment were purely scientific and that the methods used for
> conducting the experiment were likewise scientific. The experiment, though
> properly considered ">science," would undoubtedly fail under the second and
> third prongs of the *Lemon* test.
> Good.
> >Similarly, here, it is possible that ID could be considered "science"
> under some definition of that word and yet, particularly given the religious
> motivations of the Dover school board, could >foster an excessive
> entanglement of science and religion. The "science" / "not science"
> argument ultimately is largely irrelevant to the *Lemon* test.
> On the contrary, it is essential when arguing all three prongs. The judge
> did not rely on any single prong but presented a complete analysis of all
> three prongs. Even if the court were to reject one or more of the arguments,
> one of the three prongs was still likely to survive.
> I am not arguing that ID could have been considered science and still fail
> under another prong, in this case the religious motivations of the Dover
> court, but I am arguing that by looking at the ID is science argument, the
> court strengthened its case in an area in which there is much disagreement
> or unclarity as to which test to implement.
> <quote>Justice O'Connor noted in one of her concurring opinions that
> "[e]xperience proves the Establishment Clause . . . cannot easily be reduced
> to a single test," and that different cases "may call for different
> approaches."1 In cases involving "government actions targeted at particular
> individuals or groups, imposing special duties or giving benefits," O'Connor
> seemed to indicate that the neutrality test should be used, while the
> endorsement test would more appropriate in cases involving government speech
> on religious topics.2 However, she cautioned the Court against using a
> single unified test for evaluating all Establishment Clause claims, stating
> that such a test could "do more harm than good" and that a single test
> "risks being so vague as to be useless."3 </quote>
> You are correct that judges can ignore Amicus Briefs although in this case
> the judge states that he took into consideration all the materials
> <quote>The Court has received numerous letters, amicus briefs, and other
> forms of correspondence pertaining to this case. The only documents
> submitted by third parties the Court has considered, however, are those that
> have become an official part of the record. Consistent with the foregoing,
> the Court has taken under consideration the following: (1) Brief of Amici
> Curiae Biologists and Other Scientists in Support of Defendants (doc. 245);
> (2) Revised Brief of
> Amicus Curiae, the Discovery Institute (doc. 301); (3) Brief of Amicus
> Curiae the Foundation for Thought and Ethics (doc. 309); and (4) Brief for
> Amicus Curiae Scipolicy Journal of Science and Health Policy (doc.
> 312).</quote>
> On 12/28/05, Pim van Meurs <> wrote:
> >
> > I disagree the issue of ID being science was raised prominently by the
> > Discovery Institute's Amicus brief filing and required an answer as the
> > scientific nature of ID was essential to the ruling. David is under the
> > impression that it is sufficient for a court to rule on one of the prongs
> > without fully supporting its arguments. Remember that even if one prong
> > fails, all three prongs of the Lemon test need to be satisfied. In other
> > words, if the Judge's ruling were found to be incorrect based on the Dover
> > School board's behavior, there would be other reasons why the final decision
> > was still correct.
> >
> > It's interesting to speculate about the Judge's motives but why not rely
> > at least on what the Judge himself wrote. rather than jump to speculations?
> >
> > The issue of ID not being science has been decided by science, the Judge
> > merely present the scientific arguments and ruled that indeed ID is not
> > science. And for good reasons. After all, would we have the tobacco industry
> > rule on what is good medical science when it comes to smoking? In the end,
> > the judge looked at the evidence and ruled. That is well within the realm of
> > what judges typically do.
> >
> > The reason why I am as a scientist happy with the ruling is because it
> > accurately represents scientific concensus. Namely that ID is scientifically
> > vacuous. In addition, the inability of ID to present any scientifically
> > relevant contribution to science further strengthens this conclusion. Of
> > course, ID, being based on an argument from ignorance, was doomed from the
> > beginning.
> >
> > The judge explained his reasoning for his ruling. It's an excellently
> > written ruling. And yes, perhaps the judge hoped that the amount of effort
> > spent in his court would benefit other cases.
> >
> >
> >
> > Pim
> >
> >
> > ----- Original Message ----
> > From: David Opderbeck <>
> > To: "" <>
> > Cc: asa@calvin.ex
> > Sent: Wednesday, December 28, 2005 7:44:13 PM
> > Subject: Re: Judge Jones sided with the Discovery Institute and ruled
> > against the Dove...
> >
> > Wayne, you're not getting my point. There are many ways in which this
> > judge could have done a "respectable job" with this case that would have
> > stood up on appeal. Most of them --- 95% of them -- didn't require a
> > detailed written opinion on the nature of "science." If you understand how
> > trial courts work, and you have any experience appearing before trial
> > courts, there's no way you can interpret this opinion as merely crossing i's
> > and dotting t's in ancitipation of appeal. The judge was angry, and I think
> > part of this opinion was venting that anger. He also, I think, quite
> > clearly wanted to make his mark on this political debate -- and he
> > succeeded, in spades.
> >
> > *Moreover, the issue was whether ID is science.*
> > **
> > No, that was not the issue in terms of the governing law. The issue was
> > whether this particular school board violated the establishment clause
> > through the particular policy it adopted in its local school district. That
> > issue could, and in my view should, have been decided under the
> > establishment clause jurisprudence without the foray into science and ID
> > generally.
> >
> > *Suggesting we scientists all think or behave as one unified political
> > cell*
> > **
> > I didn't suggest that. You have to be pretty naive, though, to believe
> > that the Dover case wasn't at least in part politically motivated. As a
> > lawyer, I wish the case could have simply been about the law applied to the
> > particular dispute. As a scholar, I wish the discussion of ID and what
> > constitutes "science" could be held at an intellectual level among
> > scientists, historians and philosphers of science. What we've gotten
> > instead -- most unfortunately in my view -- is litigation brought by an
> > organization with a political agenda against folks with a different
> > political agenda that has produced a politicized judicial opinion.
> >
> > What I'm shocked at, honestly, is that scientists such as yourself seem
> > so comfortable with this decision. I understand that you think the result
> > and opinion were correct, so I suppose it seems to some people that the
> > right side "won" this time. What about the next time and the next and the
> > next? Is nasty, brutish litigation between warring interest groups how we
> > want to debate important and interesting questions about science, faith and
> > truth in our society? Why would anyone committed to the scientific
> > enterprise be happy about that?
> >
> > On 12/28/05, Dawsonzhu@aol.c wrote:
> >
> > > David Opderbeck wrote:
> > >
> > > Only in relatively unusual cases in which the court wants to establish
> > > precedenor weigh in on an important legal or policy question does the court
> > > craft a lengthy opinion. Usually you get a memorandum order or a less
> > > polished opinion. Have you handled cases before the courts in the Third
> > > Circuit? Where are you getting your infomation about the common practice of
> > > those courts?
> > >
> > >
> > >
> > > Fine that the "modus operandi" is this way, but why should it be
> > > called "bad"
> > > that a polished opinion was produced? Judge Jones was surely aware
> > > that
> > > his decision would be challenged if any "t" was not crossed or any "i"
> > > not
> > > dotted. It seems bizarre and peculiar that anyone should complain
> > > about
> > > someone doing a thorough job in a respectable profession.
> > >
> > > Moreover, the issues was whether ID is science. That has to be a
> > > matter
> > > that is settled from the very beginning. Suggesting that we
> > > scientists all
> > > behave and think as one unified political cell is being about as
> > > equitable as
> > > those who suggest that _all_ lawyers as dishonest, corrupt, or easily
> > > corruptible with worldly rewards. Whereas I expect some people
> > > really fit these respective molds, it is unfair to the rest who are
> > > honest in
> > > both camps and increases the level of distrust.
> > >
> > > by Grace alone we proceed,
> > > Wayne
> > >
> >
> >
Received on Thu Dec 29 16:32:07 2005

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