Re: Establishment Clause issues in the Dover case

From: Pim van Meurs <>
Date: Sat Dec 31 2005 - 01:47:03 EST

David Opderbeck wrote:

> If anyone is still interested in this unfortunately tedious thread,
> I've posted a somewhat lengthier explanation of why Judge Jones'
> ruling on "science" wasn't essential on my blog here:
Thanks David, I am looking forward to how you explain why the judge was
wrong in his claim that ruling on ID as a science was essential,
especially given the fact that this was strongly contested by plaintiffs
and strongly supported by the defendants.

<quote>Some uninformed commentators, including those at Panda's Thumb,
have concluded from this comment that case law or practice in the Third
Circuit (the federal court circuit in which the Pennsylvania federal
trial courts sit) in fact compelled Judge Jones to examine this issue in
detail. This is patently wrong.</quote>

Somewhat unnecessary rethoric here but I understand. It's hard to accept
when newbies point out the errors in one's claims.
Btw my argument was that the practice in the third court required the
Judge to rule on endorsement as well as the Lemon test. In order to rule
on the Lemon test, the judge had to decide whether ID was science or
not. He did a very in depth analysis of all the relevant aspects. Merely
making a claim that it wasn't especially since this was hotly contested
would not have been sufficient.

The issue of ID being science was as essential as the ruling in Edwards
that creation science was religious. In the latter case, legislative
history provided sufficient evidence as to the nature of creation
science. In this case, since the defendants and their expert witnesses
had all argued that ID was science, and since the plaintiffs had argued
that it was not science, it was therefor _essential_ to rule on the
issue of ID being science.
David seems to argue that it would have been sufficient to mention in a
single sentence that the judge was not convinced. But for the issue of
Lemon's purpose prong, it is highly relevant that the judge addresses
secular purpose, especially since the courts seem to object more and
more to ruling on purpose based on legislative history alone.

David makes the argument that the court did not rule on the nature of
creation science in Edwards but this seems to be at odds with the
history of this case

<quote>In addition to the IDM itself describing ID as a religious
argument, ID’s religious nature is evident because it involves a
supernatural designer. The courts in Edwards and McLean expressly found
that this characteristic removed creationism from the realm of science
and made it a religious proposition. Edwards, 482 U.S. at 591-92;
McLean, 529 F. Supp. at 1265-66. Prominent ID proponents have made
abundantly clear that the designer is supernatural.</quote>


<quote>It is notable that defense experts’ own mission, which mirrors
that of the
IDM itself, is to change the ground rules of science to allow
supernatural causation
of the natural world, which the Supreme Court in Edwards and the court in
McLean correctly recognized as an inherently religious concept.</quote>

And then the very relevant observation by Judge Jones which basically
supports my arguments

We initially note that the Supreme Court has instructed that while
courts are “normally deferential to a State’s articulation of a secular
purpose, it is required that the statement of such purpose be sincere
and not a sham.” Edwards, 482 U.S. at 586-87 (citing Wallace, 472 U.S.
at 64)(Powell, J., concurring); id. at 75 (O’Connor, J., concurring in
judgment). Although as noted Defendants have consistently asserted that
the ID Policy was enacted for the secular purposes of improving science
education and encouraging students to exercise critical thinking
skills, the Board took none of the steps that school officials would
take if these stated goals had truly been their objective.</quote>

In other words, the defendants argued that teaching ID served a secular
purpose since it was scientific. The court had no choice but to rule on
these issues.

There are some other problems with David's claims on his blog which I
intend to address soon.

After all in Edwards the court indeed held that creation science is

<quote> 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.
The Act's primary purpose was to change the public school science
curriculum to provide persuasive advantage to a particular religious
doctrine that rejects the factual basis of evolution in its

In other words, the ruling in Ewards was indeed that creation science
embraced a religious teaching. It looked at creation science and found
that it requires a supernatural being...

<quote>The term "creation science" was defined as embracing this
particular religious doctrine by those responsible for the passage of
the Creationism Act. Senator Keith's leading expert on creation science,
Edward Boudreaux, testified at the legislative hearings that the theory
of creation science included belief in the existence of a supernatural

To argue, as David does that in Edwards the court did not rule on
Creation Science being science is contradict by the actual record.
Similarly, the judge in Kitzmiller had no choice to address the status
of ID as science since it was argued that this formed a valid secular
purpose and thus the Lemon purpose prong had not failed.

What is a judge but to do than to oblige the parties and rule on this
Since the concept of ID is new in the judicial arena, and the Judge had
precided over a hearing in which much testimony had been presented
arguing both side and was thus in an excellent position to rule on this
controversy and settle the issue of secular purpose.

<quote david>Only after making these findings concerning of the
perception of the school board's policy in the local community did Judge
Jones move on to the issue of whether ID is "science." Although the
Judge mentioned that his findings regarding whether ID is "science" were
"essential" to his holding under the establishment clause, he never
expained why.</quote>

Not in as many terms but it is obvious from the defendants' and
plaintifss findings of facts why the judge did this. David also focuses
on the endorsement test which is the first test commonly applied. But as
I have shown the third court commonly includes both the establishment
test and the lemon test. Since the defendants and plaintiffs agreed that
the lemon test applied the judge did the right thing. Especially since
the endorsement test had been contested by the defendants

So it is clear that a ruling on ID being science is essential given the
somewhat complex judicial circumstances of this case.
At least it seems clear to me. But then again, my lack of legal training
may have biased me.
Received on Sat Dec 31 01:49:07 2005

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