Re: Establishment Clause issues in the Dover case

From: David Opderbeck <dopderbeck@gmail.com>
Date: Fri Dec 30 2005 - 18:43:26 EST

I disagree with your understanding of the case, the case law, and the local
practice, which is both wrong and uninformed. I agree with the result in
the case, but disagree with much of the reasoning used to reach the result.

On 12/30/05, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
>
> With ONE major difference namely that it was clear that the term
> "creation science" in Edwards was religious, but it was not clear, and
> defendants actually argued this, whether ID served a secular purpose.
> Remember that in Edwards the court ruled that the term 'creation science'
> was religious as was obvious from the legislative history. In Kitzmiller,
> the term ID was argued to be NOT religious in nature, and in fact it was
> argued to be scientific, making the purpose of the ID policy mostly secular,
> irregardless of the statements made by the board.
> As Establishment Rulings from the SC suggest, there is some doubt as to
> how to interpret intent and purpose from the legal history itself. However,
> by ruling that ID is not a science but religious, the Judge avoided dealing
> with the legal changing landscape on these issues.
>
> This was a major argument against ruling that the purpose prong would fail
> and thus as the judge himself admits, it was essential to rule on this
> issue. Even the defendants (and of course the plaintiffs) raised the issue
> of ID as a science as an important issue.
>
> If youy want to disagree with the Judge that's fine with me but the issue
> of ID being science was essential to determine if the ID policy served a
> secular purpose. After all, that's exactly what the defense and the DI
> amicus and the defense expert witnesses were all arguing.
>
> So do you disagree with the Judge on these matters?
>
>
> ----- Original Message ----
> From: David Opderbeck <dopderbeck@gmail.com>
> To: Pim van Meurs <pimvanmeurs@yahoo.com>
> Cc: asa@calvin.edu
> Sent: Fri Dec 30 12:08:59 2005
> Subject: Re: Establishment Clause issues in the Dover case
>
> No, Pim, you miss the point -- again, and again, and again. The folks on
> the Dover school board made almost exactly the same arguments to justify
> their policy as did the state in *Aguilard*. That, in fact, was one of
> the things the judge in *Kitzmiller* was so outraged about. He saw this
> as a dishonest way of trying to get around *Aguilard*. I'm tired of
> beating this dead horse, so if you feel you need to get the last word by
> saying the same mistaken things over again, go ahead -- but you are wrong,
> you have always been wrong, and you always will be wrong about this.
>
>
> On 12/30/05, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
> >
> > You miss the point. The defendants argued that the ID policy did not
> > fail the purpose prong because ID is scientific. In other words, the ID
> > policy was claimed to serve a secular purpose. Since the actions of the
> > legislator or in this case the board has been argued to provide poor
> > evidence of purpose, addressing that ID is NOT science is highly relevant.
> > Especially since Pandas and People, which was used as evidence of ID being
> > just another form of Creationism, had been argued to be not representative
> > of the ID status as a science.
> > In Aguillard the ruling was that it was religious in nature because the
> > legislators' actions and comments had shown that creation-science is
> > religious. However it is not clear that ID is similarly religious in nature
> > Thus it is essential for the purpose prong to fail that ID is shown to
> > be religious and not science, or the purpose prong may be met by a secular
> > purpose.
> >
> > The status of ID as a science is essential. Testimony during the trial
> > provided the necessary information to rule on this topic and since it had
> > been raised as the reason why the primary effect of ID is not religious, it
> > seems to me that ruling on this issue is essential to the purpose prong.
> >
> >
> > ----- Original Message ----
> > From: David Opderbeck < dopderbeck@gmail.com>
> > To: Pim van Meurs <pimvanmeurs@yahoo.com>ec
> > Cc: asa@calvin.edu
> > Sent: Friday, December 30, 2005 5:35:35 AM
> > Subject: Re: Establishment Clause issues in the Dover case
> >
> > 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 <pimvanmeurs@yahoo.com > 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 18:44:18 2005

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