Re: Establishment Clause issues in the Dover case

From: David Opderbeck <>
Date: Fri Dec 30 2005 - 08:35:35 EST

Pim -- sigh -- no one disputes any of this. No one disputes that the Lemon
test and the endorsement test apply under at least some readings of the
Third Circuit establishment clause jurisprudence, and no one disputes that
the defendants raised the advancement of science education as a "secular"
purpose, just as the defendants in *Aguilard* did. But what you still don't
understand, apparently, is that none of this *required* the district court
to undertake a lenghty discourse on whether ID is "science" generally.

All the court had to say with respect to the "purpose" prong of the
*Lemon*test is this:
*"the defendants have adopted a policy similar in many respects to that in
Aguilard, except that the policy here elides specific references to God.
The record is clear, however, that the defendants intended that the
"designer" be understood to be "God," and that the current "intelligent
design" policy is merely an extension of an earlier failed "scientific
creationism" policy with some different language. Accordingly, the court
finds that the Dover school board's policy fails the "purpose" prong as did
the "creation science" policy in Aguilard."*
That's it. That would have satisfied the Third Circuit jurisprudence and it
would have been essentially bullet-proof on appeal. There may be many
reasons why the court did much more than that, but the requirements of the
Third Circuit or Supreme Court establishment clause jurispurdence isn't one
of them.

On 12/29/05, Pim van Meurs <> wrote:
> Establishment Clause issues in the Dover case
> In the Dover case both the defendants and plaintiffs agreed that the Lemon
> test applies but the defendants argued that the endorsement test did not
> apply since it applies only to religious display cases.
> While the Judge makes it clear that under the endorsement test, the ID
> policy failed the test, there are at several reasons to also address Lemon.
> 1. The defendants disagree that the endorsement test actually applies
> 2. Both the defendants and plaintiffs accept that the Lemon test
> applies
> 3. It is common practice in the 3rd Circuit to address both the
> endorsement AND the Lemon test sequentially.
> The Third Circuit, moreover, treats the endorsement test as separate from
> the Lemon test, applying the endorsement test first and then conducting a
> separate Lemon inquiry. Best practice in this circuit, therefore, would be
> for this Court to do the same here. (From the Plaintiffs FOF)
> As for how the endorsement test relates to Lemon, the Third Circuit treats
> the endorsement inquiry as a distinct test to be applied separately from,
> and prior to, the Lemon test. Thus, although this Court need not blind
> itself to the fact that there is substantial overlap between the endorsement
> inquiry and Lemon's effect prong, the best practice will be for the Court to
> evaluate defendants' conduct under the endorsement test first, and then to
> subject it to traditional Lemon analysis.
> In a number of opinions, the Third Circuit wrestled with how to view the
> endorsement test. In Black Horse Pike, the court initially took the view
> that it made no difference whether the endorsement test was regarded as "a
> separate inquiry" or merely "part of the inquiry under Lemon" because, as
> the court saw it, "the import of
> Modrovich v. Allegheny County,27 and Child Evangelism,28 the court adopted
> thethe test is the same."23 Later, in Tenafly Eruv Ass'n v. Borough of
> Tenafly, the court took a different tack, treating the endorsement test as
> having superceded Lemon.24 But in its most recent spate of Establishment
> Clause opinions, the court has settled on a belt-and-suspenders approach:25
> In Freethought Society v. Chester County,26 practice of applying both tests,
> conducting the endorsement inquiry first and then,
> separately, measuring the challenged conduct against Lemon's traditional
> purpose and effect standards.
> Under the Lemon test the court looked at the primary purpose and primary
> effect.
> Traditionally the purpose test is applied first,
> As the Plaintiffs' FOF explains
> The purpose inquiry involves considering the policy language, "enlightened
> by its context and contemporaneous legislative history"213 including, in
> this case, the
> broader context of historical and ongoing, religiously driven attempts to
> advance creationism and denigrate evolution.
> But the Board may still argue that they are advancing a secular purpose,
> namely teaching science or providing a balanced science education (this is
> essential the DI's argument)
> For the Supreme Court has repeatedly held that, to survive judicial
> scrutiny, any asserted secular purpose "has to be genuine, not a sham, and
> not merely secondary to a religious objective."
> The Plaintiffs' FOF again
> To The Extent That Defendants Advance A Secular Purpose, It Is A Sham.
> To the extent that defendants claim to have changed the biology curriculum
> in order to improve or "balance" science education, their asserted purpose
> is a sham: Because intelligent design is not science, it can do nothing
> whatsoever to improve or balance science education. All it can do is mislead
> the students and interfere with their science education just as three of
> plaintiffs' experts (Drs. Alters, Miller, and Padian) and one of defendants'
> own experts (Prof. Fuller) testified that it would. And hence, when weighed
> against the legion evidence of the Board's actual purpose, the absence of
> evidence that the Board actually acted with an eye toward furthering any
> secular purpose, and the fact that the policy would not serve the asserted
> secular purposes, the asserted purposes should be rejected as shams.
> Now from the Defendants' Findings of Fact
> In addition both Baksa and Nilsen believed that the board had a legitimate
> educational goal not a religious purpose when the board approved the
> curriculum change.
> and
> 923. Finally, the court concludes that the curriculum change adopted by
> the board on October 2004, demonstrates that the board had a legitimate
> secular educational purpose. ... these results do not reflect a religious
> purpose; they demonstrate that the board had a legitimate secular
> educational purpose -- to advance science education
> and
> These primary effects of the DASD's curriculum change advances wholly
> legitimate and secular education goals, generally speaking to advance
> science education by making students aware of another scientific
> theorie.</quote>
> So it clear that the defendants were raising the scientific nature of ID
> as the reason why the board had a valid secular educational purpose, not a
> religious one. it was essential for the court to show that ID failed to
> have the claimed secular purpose, since it was not science.
Received on Fri Dec 30 08:39:24 2005

This archive was generated by hypermail 2.1.8 : Fri Dec 30 2005 - 08:39:25 EST