Re: Establishment Clause issues in the Dover case

From: Pim van Meurs <>
Date: Sat Dec 31 2005 - 14:39:28 EST

David Opderbeck wrote:

> If anyone is still interested, read my blog post. Pim, you don't
> understand the law.
On the contrary, I have shown clearly why the statement that ruling on
whether ID is science is essential for an establishment clause
violation. While David objects that the Judge's statement here remains
unsupported, a quick look at the history of this case as well as the
defendants and plaintiffs arguments would reveal why the judge made this

Let me start with an example that shows why it was essential:

A school board passes a policy which requires the teaching on evolution.
While the legislative history is full of evidence that religious motives
played a significant role in the school board's decision, the school
board also stated that the primary purpose of the policy was secular.
Under David's arguments, what would the court have to do?
Under my arguments, the court would follow precendent and establish if
the primary purpose as stated is secular and sincere and not a sham.

So back to Dover and the Edwards v Aguillard ruling

David correctly argued that the court ruled that the purpose prong
failed but fails to understand the parallels and differences between
Edwards and Kitzmiller. In Edwards, the secular purpose was found to be
religious because the legislative history showed that the term "creation
science" was religious, not science in nature. In Kitzmiller however,
the legislative history provides little assistance in ruling on whether
or not ID is scientific or religious in nature.
Since the defendants and plaintiffs agreed that the case should be
decided under Lemon and since the defendants and plaintiffs disagreed on
a very relevant issue of secular purpose, the court had to address if
the primary purpose of the ID policy would still be secular.

Typically courts give a lot of deferrence to the stated purpose by the
legislator but the court is also clear that the stated purpose must be
sincere and not a sham.

In order to address this issue, the court had to visit a new issue: Is
ID's primary purpose secular or not? For this the court followed
established precedence. For instance in McLean v Arkansas, the court
looked closely at the scientific nature of "creationism" to determine
whether the law passed the purpose prong.

In Sante Fe v Doe, the court ruled that to an objective observer the
policy would be interpreted as endorsing prayer in school. And
additionally the court rejected Santa Fe's stated secular purpose,
finding it to be a sham.

So is the board's stated purpose insincere and a sham? The legislative
history does not resolve this since the defendants argue that the
board's purpose was secular because the primary purpose of the policy is
secular since ID is a science.

Given this, the conclusion that ruling on the stated secular purpose of
the board, namely that ID is science was inevitable and essential.

The law seems clear here.
Received on Sat Dec 31 14:40:43 2005

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