Pim, just because the Judge said it was "essential" doesn't mean it really
was "essential" or even that he really thought it was "essential." There
are at least two options: (1) he was mistaken; or (2) he was trying to
justify doing something that wasn't really necessary to the case. Option
(1) is certainly possible, and it happens all the time. No trial judge is
infallible; that's why we have multiple layers of appeals courts. But I
rather think some aspect of option (2) is operative here as well.
Here is where my stripes as something of a "legal realist" will show a bit.
The classical view of judging is that judges really objectively sift the
facts, objectively apply the law, and otherwise do their best to reach
objective results. Once you've spent a little time in a courtroom with a
real judge, you realize that the classical view is naive. What judges
really do is more complex, because judges are human and courts are human
institutions. Often, it seems that judges reach a gut-level conclusion
based on their own views and preconceptions and then reason backwards to
obtain their desired result. The "law," in a sense, isn't some Platonic
ideal to which all judges aspire. The "law" is whatever the judge says it
is, and legal reasoning is an effort to cloak the judge's subjective
conclusions in objectivity.
Now, I'm not going off on some sort of "activist judge" rant here, and I'm
not yet so cynical as to think that the legal realist perspective explains
all judicial activity. I think judges often try to be objective, and as one
who thinks natural law is a valid idea, I think there is something objective
that stands behind positive law. Nor am I suggesting Judge Jones did
anything wrong or dishonest here. I do think, though, that Judge Jones'
statement about the discussion of "science" being "essential" to his ruling
is better explained through a legal realist framework than through any
requirements of the precedents he was applying. He was mad at the witnesses
who lied; he was mad at what he thought was a waste of judicial and taxpayer
resources; and he took a side in a debate that extends far beyond the
boundaries of his courtroom. Judges do this all the time.
On 1/2/06, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
>
> David Opderbeck wrote:
>
> > What I think is interesting is that neither Powell nor the majority in
> > Aguilard had to discuss what "science" means in any detail to reach
> > its conclusion under Lemon. That conclusion was based on the
> > legislative history and the actions of the legislators -- just as it
> > was in Kitzmiller. You keep missing the fact that the discussion of
> > science in Kitzmiller didn't fall under the "purpose" prong of the
> > Lemon test, it fell under the "endorsement" test, as to which it was
> > even more irrelevant.
> > But whatever. We don't agree. I don't think you really understand the
> > law. We'll never resolve this.
> >
>
> I am still trying to understand why the Judge considered his ruling
> essential
>
> We have now found that both an objective student and an objective adult
> member of the Dover community would perceive Defendants' conduct to be a
> strong endorsement of religion pursuant to the endorsement test. Having so
> concluded, we find it incumbent upon the Court to further address an
> additional issue raised by Plaintiffs, which is whether ID is science.
> To be sure, our answer to this question can likely be predicted based
> upon the foregoing analysis.
>
> The plaintiffs raised the issue of 'advancing a secular purpose' under
> the Lemon purpose prong as well as under the endorsement test rule:
>
> /To The Extent That Defendants Advance A Secular Purpose, It Is A Sham.
>
> To the extent that defendants claim to have changed the biology
> curriculum in order to improve or "balance" science education, their
> asserted purpose is a sham: Because intelligent design is not science,
> it can do nothing whatsoever to improve or balance science education.
> /
> and
>
> /First, "[s]ince [intelligent design] is not science, the conclusion is
> inescapable that the only real effect of [defendants' policy] is the
> advancement of religion."
> /
> Also the Defendants raised the 'ID is science' as the reason why the
> court should reject the purpose prong argument since ID's primary
> purpose is not religious but rather scientific.
>
> While the endorsement test is a combination of purpose and effect prongs
> of the Lemon test, it tends to focus more on effect than on purpose.
>
> O'Conner on the endorsement test
>
> /The central issue * * * is whether [the government] has endorsed
> [religion] by its [actions]. To answer that question, we must
> examine both what [the government] intended to communicate * * * and
> what message [its conduct] actually conveyed. The purpose and effect
> prongs of the Lemon test represent these two aspects of the meaning
> of the [government's] action."34/
>
> However even in case of the endorsement test, having a secular purpose
> would be relevant, after all, under the endorsement test and your
> interpretation, the court would have to reject a law requiring the
> teaching on evolution if the motivations of the legislators were
> religiously motivated.
>
> /See, e.g., McCreary County, Ky. v. ACLU, 125 S. Ct. 2722, 2747
> (2005) (O'Connor, J., concurring) ("The purpose behind the counties'
> display is relevant because it conveys an unmistakable message of
> endorsement to the reasonable observer."); Lynch, 465 U.S. at 690
> (O'Connor, J., concurring) ("The meaning of a statement to its
> audience depends both on the intention of the speaker and on the//
> 'objective' meaning of the statement in the community.")./
>
>
> Even for endorsement, showing that it involve endorsement or disapproval
> of religion, it is essential to show that there is no secular purpose.
>
> As the Plaintifss argued
>
> First, "[s]ince [intelligent design] is not science, the conclusion is
> inescapable that the only real effect of [defendants' policy] is the
> advancement of religion."
>
> > On 1/2/06, *Pim van Meurs* <pimvanmeurs@yahoo.com
> > <mailto:pimvanmeurs@yahoo.com>> wrote:
> >
> > David Opderbeck wrote:
> >
> > > That's a bizarre reading of Aguilard. Did you read Aguilard
> itself,
> > > or just the talkorigins link you cut and pasted? As we've been
> > > through before, Aguilard found no secular purpose with hardly a
> whit
> > > of dicussion about what "science" means. The Kitzmiller court
> could
> > > have done the same, in a sentence or two citing Aguilard.
> Aguildard
> > > doesn't help your cause if you actually take the time to read and
> > > understand it.
> > >
> > So you keep claiming and yet the case itself, including Powell's
> > comments show that the issue of 'creation science' being science
> > was an
> > essential part. Since 'creation science' had been defined by the
> > legislature, it was sufficient to show that the appeal to a
> > supernatural
> > designer did not qualify creation science as a science.
> >
> > As I quoted below, Powell's comments are helpful in understanding
> why
> > the Kitzmiller court found ruling on ID being science to be
> > essential as
> > it precluded ID from having a secular purpose as claimed by the
> > defendants.
> >
> > Since the SC also allows for religious purposes as long as there is
> a
> > compelling secular purpose, determining the validity of said
> > purpose is
> > a requirement.
> >
> > The more I read Aguillard, the more it ends up supporting my
> > position.
> > Isn't that amazing.
> >
> > The talkorigins link IS the Edwards v aguillard ruling. Talkorigins
> is
> > an excellent resource for matters related to evolution and
> > creationism.
> >
> > Let's walk through Powell's and O'Connor's opinoin.
> >
> > Since the act did not define either term (and neither did the ID
> > policy
> > in Dover), the terms are interpreted according to their contemporary
> > meaning (Perrin v. United States, 444 US 37, 42 (1979). Powell thus
> > concludes that creation science is "manifestly religious", observing
> > that "These concepts do not shed that religiosity merely because
> they
> > are presented as a philosophy or as a science." Malnak v. Yogi, 440
> > F.Supp. 1284, 1322 (NJ 1977), aff'd per curiam , 592 F.2d 197 (CA3
> > 1979)"
> >
> > Powell then observes that a religious purpose alone is not enough to
> > invalidate the act, and finds that from reading the act alone,
> > purpose
> > is unclear and therefor he looks at the legislative history.
> >
> > Arguing that "Here, it is clear that religious belief is the
> Balanced
> > Treatment Act's "reason for existence." The tenets of creation
> > science
> > parallel the Genesis story of creation (4)
> > <http://www.talkorigins.org/faqs/edwards-v-aguillard.html#P4>, and
> > this
> > is a religious belief. "No legislative recitation of a supposed
> > secular
> > purpose can blind us to that fact." Stone v. Graham, 449 U.S. 39, 41
> > (1980). "
> >
> > So in the case of Edwards, the religious foundation of creation
> > science
> > was self evident. But in case of ID this was far less obvious.
> >
> > So as Powell observes
> >
> > "This Court consistently has applied the three-pronged test of
> > Lemon v.
> > Kurtzman, 403 US 602 (1971), to determine whether a particular state
> > action violates the Establishment Clause of the Constitution (1)
> > <http://www.talkorigins.org/faqs/edwards-v-aguillard.html#P1>. See,
> e.
> > g., Grand Rapids School Dist. v. Ball, 473 US 373, 383 (1985) ("We
> > have
> > particularly relied on Lemon in every case involving the sensitive
> > relationship between government and religion in the education of our
> > children"). The first requirement of the Lemon test is that the
> > challenged statute have a "secular legislative purpose." Lemon v.
> > Kurtzman, supra, at 612. See Committee for Public Education &
> > Religious
> > Liberty v. Nyquist, 413 US 756, 773 (1973). If no valid secular
> > purpose
> > can be identified, then the statute violates the Establishment
> > Clause."
> >
> > In the case of ID, there may have been a secular legislative
> > purpose if
> > ID had been scientific. After all as I argued in my example of a
> > religiously motivated legislature ruling that evolution should be
> > taught, the mere motivation of the legislatory still may not
> > invalidate
> > the purpose prong if the primary purpose is secular (in this case
> > scientific).
> >
> >
> >
> >
> > > On 1/2/06, *Pim van Meurs* <pimvanmeurs@yahoo.com
> > <mailto:pimvanmeurs@yahoo.com>
> > > <mailto: pimvanmeurs@yahoo.com <mailto:pimvanmeurs@yahoo.com>>>
> > wrote:
> > >
> > > David Opderbeck wrote:
> > >
> > > > What does Powell's concurrence in Aguilard have to do with
> > anything?
> > > > There's no extended discussion of "science" there.
> > >
> > >
> > > /The Court's search for a valid, bona fide secular purpose, also
> > > suggests the conclusion that the concurrence in Edwards in fact
> > > draws: "If no valid secular purpose can be identified, then the
> > > statute violates the Establishment Clause."45 In this context, the
> > > search for the bone fide secular purpose would entail a close
> > > examination of alternatives to evolution, including the question
> > > whether the alternative constitutes a valid scientific theory./
> > >
> > > Powell argues that the search for a bona fide secular purpose
> would
> > > entail the determination if the alternative, in this case ID,
> > > consistutes a valid scientific theory.
> > >
> > > First of all this helps understand why the Judge may have
> considered
> > > ruling on whether ID is science essential, secondly it shows
> > that your
> > > statement
> > >
> > > > But what the ruling was /supposed/ to do was ask whether ID
> > > > unconstitutionally promotes religion, not whether ID meets the
> > > > standards of science. Hence the first amendment problem.
> > >
> > >
> > > is contradicted by Powell's concurring opinion in Ewards.
> > >
> >
> >
>
>
Received on Tue Jan 3 12:13:50 2006
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