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

From: Pim van Meurs <>
Date: Thu Dec 29 2005 - 23:21:25 EST

I've also studied the establishment clause jurisprudence, both in law school and since then. Have you read all the establishment clause jurisprudence that led up to this case, including the Supreme Court's Aguilard decision? If a detailed ruling on what "science" means is essential to the establishment clause analysis in cases like this, why didn't the Supreme Court do so in Aguilard? The Aguilard Court engaged in an extensive analysis of the Lemon "purpose" prong without directly addressing whether "creation science" was "science," much less giving a mini-treatise on what "science" generally means. Instead, the Aguilard Court relied on the legislative history and public statements made by the "creation science" law's proponents to find that the law had a religious purpose. The same could have been done here without the foray into a general definition of "science." That alone shows conclusively that the lengthy discourse on the meaning of "science" was not "essential
 " to the trial court's decision in Kitzmiller.
From Edwards v. Aguilard (ruling on 1. The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose. )
The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching.

In the Dover case, in order to address the secular purpose issue, it was essential for the court to address the claim that the secular purpose was found in the scientific status of Intelligent Design. Since the legislative history did not allow for a determination if ID was religious in nature, it was, there is that word again, essential for the court to rule on this issue. In fact both the defendants as well as the DI Amicus brief raised this as a reason why the main purpose was in fact secular. In other words, the religious nature of "Creation Science" was clearly religious from the legislative history in Edwards, in the case of Dover the issue of the scientific status of Intelligent Design was undecided and certainly not clear from legislative history.
 I have no problem with someone who argues that it was good or useful or important for the court to have engaged in its stroll through the history and philosophy of science; I think such arguments are wrong, but at least they can be justified. By saying the court's discussion of science was legally "essential," however, and sticking to that story in the face of all the evidence to the contrary, you show that you don't know what you're talking about. It's deeply disturbing to me that you can't see that, and that you continue to push your position through advocacy forums like Panda's Thumb to other folks who don't understand the law or legal process. Do you see that your doing the same thing with the law that you accuse others of doing with science?
A position well supported by the Judge's own ruling. I am not sure what 'evidence to the contrary' you have in mind. As I have shown the following:
1. Plaintiffs and defendants agreed that the Lemon test needed to be applied
2. Defendants opposed the endorsement test
3. Defendants argued that a secular purpose was served by the policy since ID was an alternative scientific theory
4. In the 3rd circuit it seems common to address both endorsement test and lemon test
5. Given the changing environment in the establishment clause legal arena, it behoves the court to be dilligent in its application of all these tests

And then the Judge again: "Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, ..."

 Could you explain why you consider Judge Jones' reasoning that the conclusion on whether ID is science is essential to the holding that an establishment clause violation has occurred? Could you explain why you believe that the court did not need to address the claims by defendants that the ID policy served a valid secular purpose since they claimed ID was science? In ruling on the purpose prong of Lemon, it was essential to rule on the validity of the defendants' claims that ID policy served a valid secular purpose.

But perhaps the simpler argument may be that Judge Jones does not understand the law or legal process? That seems the approach chosen by the Discovery Institute. I find such an argument, while fully understandable, also highly unconvincing. I admit that my legal training is minimal and am guided by legal practice, common sense and the legal opinion of the Judge in this case.

Received on Thu, 29 Dec 2005 20:21:25 -0800 (PST)

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