Re: Establishment Clause issues in the Dover case

From: David Opderbeck <>
Date: Sat Dec 31 2005 - 17:58:00 EST

Ok, Pim, I guess at some point we're just going to have to agree to disagree
and let the case law speak for itself. I think you're misreading the cases;
you think I'm misreading them; we won't agree on it. Maybe I'm wrong --
woudn't be the first time -- but I don't think so.

Here's why it matters to me: I think what this court did regarding
"science" and ID was more of a shot across the bow in the culture wars than
courts should entertain. I think the decision went too far beyond the
confines of the "case or controversy" before the court. I also think the
court's analysis of the history and philosophy of science -- agree with the
end result or not (I don't) -- was facile. I think the question of what
"science" means is an ongoing, evolving, many-layered question that can't
and shouldn't be reduced to, forgive the crude expression, a pissing contest
in the federal courts. Perhaps part of it is that I was a litigator for so
long that I'm somewhat cynical about what the courts actually do and what
they're truly capable of -- in academic terms, I'm a bit of a "legal
realist." Courts are good at "little" questions -- the particular
questions that get raised between particular parties in particular
disputes. Courts are very bad at "big" questions, and using courts to
answer "big" questions is inherently undemocratic. So that's my take on it,
good, bad or ugly.

On 12/31/05, Pim van Meurs <> wrote:
> Now we are getting somewhere.
> David Opderbeck wrote:
> > 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.
> This still avoids that the secular purpose of the ID policy may very
> well have been secular even though the purpose of the board had been
> religiously motivated.
> So you are arguing that under the endorsement test (basically O'Conner's
> variation on the first and second prong of Lemon), the argument that it
> is not relevant to look at the secular purpose.
> Remember however that the defendants and plaintiffs agreed on the
> application of the Lemon test, and that the defendants disagreed on
> applying the endorsement test.
> I am not sure why you referred to Edwards ruling then.
> > 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.
> Again this is incorrect. The parallels may have been very strong but as
> I showed, the issue was if ID was similar to "creation science" in
> Aguillard. In Aguillard, the court could rely on the legislative record.
> In Kitzmiller the court had to look at additional evidence. Luckily the
> expert witnesses had presented the court with an excellent overview of
> the arguments pro and con, allowing the judge to make what called
> 'essential' argument.
> > 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?
> >
> And the judge disagrees with you. So I may very well ask you the same
> question. Why is it important to you anyway?
> Greg Arago
> >Sooner or later Pim van Meurs will appear to be taking the side of
> 'secular' too much and too often to coincide >with the goodness of
> Christian faith and Christian scientific efforts. Christian and secular
> do not converge or >agree easily philosophically.
> I have no idea what you are discussing here. But I am discussing the
> legal aspects of the ruling
> >When this happens Pim's anti-ID, pro-evolutionary stance will be
> revealed for what it actually is and what it is >worth.
> Which is exactly what Greg?
> > C. Darwin is not absolutely infallible; evolutionism is not
> universalistic or invulnerable. Materialism and atheism >live on openly
> in the perspecitves of well-known popular evolutionists, even if not all
> evolutionists are atheistic.
> And theistic Christians and many others.
> >Who is Pim after all: philosopher, armchair commentor, invested
> scientist, theologian? What religious doctrines >does he speak for
> (i.e. represent) that his allegiance to evolution doesn't demolish? The
> law seems clear here.
> Indeed, the laws seems clear. ID is not science.
> But why do you question my motives or my expertise? Are we not all some
> form of airmchair commentor, scientists, philosopher or theologian? Why
> are you creating these strawmen when the discussion is the Kitzmiller
> ruling and how the law applies here?
> I understand that the Kitzmiller ruling may be hard to accept but may I
> encourage Greg to please keep the conversation to a civil level.
> So Greg, do you have any arguments relevant to this thread?
Received on Sat Dec 31 17:58:48 2005

This archive was generated by hypermail 2.1.8 : Sat Dec 31 2005 - 17:58:48 EST