Re: Establishment Clause issues in the Dover case

From: David Opderbeck <>
Date: Sat Dec 31 2005 - 15:29:33 EST

No, Pim, the Kitzmiller court's analysis of "science" wasn't undertaken
under the "purpose" prong of the Lemon test, which is where the "sincere and
not a sham" principle comes in. The court identified lots of other evidence
in the record, including the apparent disingenuousness of the board members,
under that part of the test, to find that the Dover board's avowed secular
purpose was a sham. You're mixing up the different principles involved and
the manner in which the facts were applied under those principles.

The "endorsement" test, under which the court analyzed whether ID is
"science," asks about the perceptions of reasonable observers in the
community -- in other words, whether an ordinary reasonable observer in the
affected community would perceive that the government was endorsing
religion. Under that part of the test, the court adduced lots of evidence
drawn from public meetings, the local press, etc. concerning the local
public's perceptions of the board's actions. It wasn't necessary to go
further and discuss ID as science generally; indeed, it was irrelevant,
since the ordinary person in the community isn't a member of the scientific
guild or a philosopher of science and probably has little knowledge or
interest in the aracana of how "science" should be defined. I go into this
in more detail, including a discussion of some of the Third Circuit's
precedents, in my blog post.

Moreover, since the court had already found the this school board's "ID"
policy was a re-worded version of a creation science policy, the paralells
to *Aguilard* were quite strong. You may think it wise that the court
didn't merely rely on *Aguilard,* but it easily could have done so on the
record it developed. This means that, whatever else you want to say about
the court's discussion of "science," you can't call it "essential" to the
decision the court had to make.

Why is this so important to you anyway? Your "side" won the case. ID got
smacked down. You can make lots of arguments about why it was wise or good
for this judge to rule as he did about whether ID is science, without
twisting the law into all kinds of pretzels. Why do you need to try to make
it appear that the Judge was compelled to do what he did, when he most
certainly wasn't?

On 12/31/05, Pim van Meurs <> wrote:
> 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
> statement.
> 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 15:30:45 2005

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