Re: Establishment Clause issues in the Dover case

From: David Opderbeck <>
Date: Sat Dec 31 2005 - 08:40:31 EST

If anyone is still interested, read my blog post. Pim, you don't understand
the law.

On 12/31/05, Pim van Meurs <> wrote:
> 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>
> and
> <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
> <quote>
> 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
> religious.
> <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
> entirety.</quote>
> 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
> creator.</quote>
> 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
> controversy.
> 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 08:44:25 2005

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