Re: Judge Jones sided with the Discovery Institute and ruled against the Dove...

*What the court stated is that the finding that ID is not science was
essential for its ruling on the establishment clause.
*
Unfortunately, it seems this discussion is getting nowhere. I've
demonstrated why this assertion is false, both as a matter of substantive
law and as a matter of common judicial practice. You can keep asserting it,
but it will still be false.

On 12/29/05, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
>
>
>
>
> >Pim -- the fact that an argument is raised in an amicus brief is
> irrelevant. A judge doesn't have to consider an amicus brief, and indeed
> doesn't even need to address in detail an argument >raised by a
> party-litigant. I've been in many cases in which the judge said, "I've read
> x's argument concerning y, and find I do not need to address it because of
> z." If trial judges had to >address in detail every argument ever raised in
> a case, they'd never sleep and would decide maybe two cases a year.
>
> Let's look at this step by step. First both plaintiffs and defendants
> agreed that the Lemon test should apply, the defendants objected to the
> endorsement test. The judge looked at the three prongs of the Lemon test.
> The first prong is secular purpose. Since the argument proposed was that
> ID's primary effect is not necessarily religious because it is science, it
> behoves the judge to address this point. The legal landscape surrounding the
> establishment clause is in severe flux and while the judge need not address
> all aspects, courts often in an attempt at completeness look at various
> tests and all the prongs involved. Even if one part fails, the ruling will
> still stand based on the other parts. In this case, the purpose prong
> required the court to find that the board's motivations were religious but
> that itself may not be sufficient if the defendants were to argue that their
> purpose was scientific.
>
>
>
>
> >Further, you are wrong about how the Lemon test works. The party
> challenging a state action under the establishment clause does* not* need
> to prove that all three prongs of the *Lemon* test >have been
> "satisfied." Rather, the party challening a statute on establishment clause
> grounds must demonstrate that the statute fails under *any one prong* of
> the Lemon test. If the statue >does not have a secular legislative purpose,
> or the statute's principal or primary effect is one that inhibits or
> enhances religion, or the statute fosters an excessive entanglement of
> governement >with religion, the statute fails. For example, a statute with
> an entirely secular legislative purpose that nevertheless has the effect of
> "enhancing religion" would be unconstitutional. Likewise, a >statute that
> has a primarily religious purpose fails, period, regardless of the effect
> and entanglement prongs.
>
> I understand very well that the Lemon test means that failure of any test
> is sufficient. But basing one's ruling on a single prong seems unwise when
> the legal landscape is so much in flux when it comes to Lemon. In other
> words, for completeness the court decided to rule on all prongs and aspects.
> This is hardly uncommon in establishment clause cases.
>
>
> >Indeed, the Supreme Court did exactly this in the *Lemon* opinion
> itself: it found that the education policies at issue in that case had a
> secular purpose, but that the policies nevertheless failed >under the
> "entanglement" prong.
>
> I do not contend this.
>
>
> >Finally, even if the court had desired to address all three prongs for
> the sake of completeness, which is not unusual, the discussion of what
> constitutes "science" was unnecessary under any >prong of the *Lemon*test. You seem to assume that if the court found ID were "science," it
> would automatically pass prongs 2 and 3 of *Lemon*. Why? Under the *
> Lemon* test, a statute >could have a scientific basis or purpose, and yet
> have the effect of enhancing religion or fostering an excessive entanglement
> with religion.
>
> Not at all. I am merely pointing out that ruling on all three prongs is
> hardly unusual. What the court stated is that the finding that ID is not
> science was essential for its ruling on the establishment clause.
>
>
> >Say, for example, that a state decided to conduct an experiment
> concerning whether children who recieve religious instruction in school
> score higher on standardized tests. Assume further >that the motivation for
> the experiment were purely scientific and that the methods used for
> conducting the experiment were likewise scientific. The experiment, though
> properly considered ">science," would undoubtedly fail under the second and
> third prongs of the *Lemon* test.
>
> Good.
>
>
> >Similarly, here, it is possible that ID could be considered "science"
> under some definition of that word and yet, particularly given the religious
> motivations of the Dover school board, could >foster an excessive
> entanglement of science and religion. The "science" / "not science"
> argument ultimately is largely irrelevant to the *Lemon* test.
>
> On the contrary, it is essential when arguing all three prongs. The judge
> did not rely on any single prong but presented a complete analysis of all
> three prongs. Even if the court were to reject one or more of the arguments,
> one of the three prongs was still likely to survive.
>
> I am not arguing that ID could have been considered science and still fail
> under another prong, in this case the religious motivations of the Dover
> court, but I am arguing that by looking at the ID is science argument, the
> court strengthened its case in an area in which there is much disagreement
> or unclarity as to which test to implement.
>
> <quote>Justice O'Connor noted in one of her concurring opinions that
> "[e]xperience proves the Establishment Clause . . . cannot easily be reduced
> to a single test," and that different cases "may call for different
> approaches."1 In cases involving "government actions targeted at particular
> individuals or groups, imposing special duties or giving benefits," O'Connor
> seemed to indicate that the neutrality test should be used, while the
> endorsement test would more appropriate in cases involving government speech
> on religious topics.2 However, she cautioned the Court against using a
> single unified test for evaluating all Establishment Clause claims, stating
> that such a test could "do more harm than good" and that a single test
> "risks being so vague as to be useless."3 </quote>
>
> http://leahy.senate.gov/issues/SupremeCourt/PDFs/ChurchOConnor.pdf
>
> You are correct that judges can ignore Amicus Briefs although in this case
> the judge states that he took into consideration all the materials
>
>
> <quote>The Court has received numerous letters, amicus briefs, and other
> forms of correspondence pertaining to this case. The only documents
> submitted by third parties the Court has considered, however, are those that
> have become an official part of the record. Consistent with the foregoing,
> the Court has taken under consideration the following: (1) Brief of Amici
> Curiae Biologists and Other Scientists in Support of Defendants (doc. 245);
> (2) Revised Brief of
> Amicus Curiae, the Discovery Institute (doc. 301); (3) Brief of Amicus
> Curiae the Foundation for Thought and Ethics (doc. 309); and (4) Brief for
> Amicus Curiae Scipolicy Journal of Science and Health Policy (doc.
> 312).</quote>
>
>
> On 12/28/05, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
> >
> > I disagree the issue of ID being science was raised prominently by the
> > Discovery Institute's Amicus brief filing and required an answer as the
> > scientific nature of ID was essential to the ruling. David is under the
> > impression that it is sufficient for a court to rule on one of the prongs
> > without fully supporting its arguments. Remember that even if one prong
> > fails, all three prongs of the Lemon test need to be satisfied. In other
> > words, if the Judge's ruling were found to be incorrect based on the Dover
> > School board's behavior, there would be other reasons why the final decision
> > was still correct.
> >
> > It's interesting to speculate about the Judge's motives but why not rely
> > at least on what the Judge himself wrote. rather than jump to speculations?
> >
> > The issue of ID not being science has been decided by science, the Judge
> > merely present the scientific arguments and ruled that indeed ID is not
> > science. And for good reasons. After all, would we have the tobacco industry
> > rule on what is good medical science when it comes to smoking? In the end,
> > the judge looked at the evidence and ruled. That is well within the realm of
> > what judges typically do.
> >
> > The reason why I am as a scientist happy with the ruling is because it
> > accurately represents scientific concensus. Namely that ID is scientifically
> > vacuous. In addition, the inability of ID to present any scientifically
> > relevant contribution to science further strengthens this conclusion. Of
> > course, ID, being based on an argument from ignorance, was doomed from the
> > beginning.
> >
> > The judge explained his reasoning for his ruling. It's an excellently
> > written ruling. And yes, perhaps the judge hoped that the amount of effort
> > spent in his court would benefit other cases.
> >
> >
> >
> > Pim
> >
> >
> > ----- Original Message ----
> > From: David Opderbeck < dopderbeck@gmail.com>
> > To: "Dawsonzhu@aol.com" < Dawsonzhu@aol.com>
> > Cc: asa@calvin.ex
> > Sent: Wednesday, December 28, 2005 7:44:13 PM
> > Subject: Re: Judge Jones sided with the Discovery Institute and ruled
> > against the Dove...
> >
> > Wayne, you're not getting my point. There are many ways in which this
> > judge could have done a "respectable job" with this case that would have
> > stood up on appeal. Most of them --- 95% of them -- didn't require a
> > detailed written opinion on the nature of "science." If you understand how
> > trial courts work, and you have any experience appearing before trial
> > courts, there's no way you can interpret this opinion as merely crossing i's
> > and dotting t's in ancitipation of appeal. The judge was angry, and I think
> > part of this opinion was venting that anger. He also, I think, quite
> > clearly wanted to make his mark on this political debate -- and he
> > succeeded, in spades.
> >
> > *Moreover, the issue was whether ID is science.*
> > **
> > No, that was not the issue in terms of the governing law. The issue was
> > whether this particular school board violated the establishment clause
> > through the particular policy it adopted in its local school district. That
> > issue could, and in my view should, have been decided under the
> > establishment clause jurisprudence without the foray into science and ID
> > generally.
> >
> > *Suggesting we scientists all think or behave as one unified political
> > cell*
> > **
> > I didn't suggest that. You have to be pretty naive, though, to believe
> > that the Dover case wasn't at least in part politically motivated. As a
> > lawyer, I wish the case could have simply been about the law applied to the
> > particular dispute. As a scholar, I wish the discussion of ID and what
> > constitutes "science" could be held at an intellectual level among
> > scientists, historians and philosphers of science. What we've gotten
> > instead -- most unfortunately in my view -- is litigation brought by an
> > organization with a political agenda against folks with a different
> > political agenda that has produced a politicized judicial opinion.
> >
> > What I'm shocked at, honestly, is that scientists such as yourself seem
> > so comfortable with this decision. I understand that you think the result
> > and opinion were correct, so I suppose it seems to some people that the
> > right side "won" this time. What about the next time and the next and the
> > next? Is nasty, brutish litigation between warring interest groups how we
> > want to debate important and interesting questions about science, faith and
> > truth in our society? Why would anyone committed to the scientific
> > enterprise be happy about that?
> >
> > On 12/28/05, Dawsonzhu@aol.com Dawsonzhu@aol.c wrote:
> >
> > > David Opderbeck wrote:
> > >
> > > Only in relatively unusual cases in which the court wants to establish
> > > precedenor weigh in on an important legal or policy question does the court
> > > craft a lengthy opinion. Usually you get a memorandum order or a less
> > > polished opinion. Have you handled cases before the courts in the Third
> > > Circuit? Where are you getting your infomation about the common practice of
> > > those courts?
> > >
> > >
> > >
> > > Fine that the "modus operandi" is this way, but why should it be
> > > called "bad"
> > > that a polished opinion was produced? Judge Jones was surely aware
> > > that
> > > his decision would be challenged if any "t" was not crossed or any "i"
> > > not
> > > dotted. It seems bizarre and peculiar that anyone should complain
> > > about
> > > someone doing a thorough job in a respectable profession.
> > >
> > > Moreover, the issues was whether ID is science. That has to be a
> > > matter
> > > that is settled from the very beginning. Suggesting that we
> > > scientists all
> > > behave and think as one unified political cell is being about as
> > > equitable as
> > > those who suggest that _all_ lawyers as dishonest, corrupt, or easily
> > > corruptible with worldly rewards. Whereas I expect some people
> > > really fit these respective molds, it is unfair to the rest who are
> > > honest in
> > > both camps and increases the level of distrust.
> > >
> > > by Grace alone we proceed,
> > > Wayne
> > >
> >
> >
>
Received on Thu Dec 29 16:32:07 2005