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

Sigh. I'm not sure what else I can do here, you're back to not getting it
again. Why would my first scenario lack a valid secular purpose? There's
no "religious" purpose at all in my first scenario. No one disputes the
quotes you keep pulling out of the opinion -- there has to be a valid
secular purose that isn't a "sham." Actually, that's my point -- "purpose"
is a test of the government's *motivations, *not an objective evaluation of
the policy's effect.

When you say "even if the motives were to be religiously motivated, there
still could be a valid secular purpose," I think you're confusing purpose
and effect. It's true that a policy could have religious *motives* but not
have the *effect* of endorsing religion. This potential disconnect between
motives and effects, as well as the inherent difficulty in judging "the"
motives behind a government policy, which often represents a melange of
different motives, are what led to the compressed "endorsement" test
proposed by Justice O'Connor. But when we judge "effect," as we've
already established, aren't asking about whether experts in some field would
classify the policy as "science," "religion," "economics," a "ham sandwich,"
or anything else. We're asking whether ordinary informed citizens would
percieve the policy as an endorsement of religion. So, in either case, the
scientific community's view of whether the policy is really "science" is
irrelevant.

Let me take a crack at your hypothetical then, though I'm still not sure I
understand it. Here's what I understand you to be proposing: *Plaintiff
claims that a government policy mandating the teaching of evolution in
public schools has the purpose of endorsing religion because evolutionary
theory itself is a religion.* This argument will be rejected for the
reasons I mentioned before. In defining "religion" under the establishment
clause, courts have looked to traditional indicia of what constitutes a
"religion," such as established houses of worship, clergy, and historical
and community traditions. In some cases, the boundaries have been fuzzy, as
in cases involving the Church of Scientology or cases involving the use of
hallucinagenics by Native Americans. A court would never find, however,
that evolutionary theory in itself, though it might be an "ideology" of
sorts, constitutes a "religion." Therefore, the "religious purpose"
argument would fail.

To illustrate why this conclusion doesn't turn on the definition of
"science," substitute "utilitarianism," "free market economics,"
"socialism," "freudianism," or any variety of "-isms" not derived from
traditional religious practices. None of these would offend the
establishment clause, not because they are "science" or "not science" -- I
don't think you would argue that freudianism or socialism qualify as
"science" -- but because they posses none of the common indicia of a
religion.

I can anticipate at least one objection here: evolution isn't an "ism" at
all, it's a "fact." Putting aside the tendentiousness of this kind of
statement, even if true, this would have no bearing on the establishment
clause question. All of the "isms" mentioned above, and most religions,
assert some things that are "facts," along with varying implications drawn
from those "facts" that have varying degrees of facticity. The
establishment clause isn't implicated based on the degree of facticity in a
government policy. If it were, the ultimate constitutional test of any
government policy would be its degree of facticity. Fanciful but
non-religious policies like social security reform would be subject to
challenge under the establishment clause. Indeed, one could argue that if
the degree of facticity were the test, very little would remain of anything
ever enacted by Congress.

On 1/4/06, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
>
> David Opderbeck wrote:
>
> ><em>I argue that the lack of a valid secular purpose would be a major
> factor
> >since the study does not meet the SC's requirements of science.</em>
> >
> >My hypothetical assumed the study does meet the requirements of
> >"science". Assume whatever other facts you need to about the study's
> >design and methodology in order to meet those requirements. Remember,
> >it's a hypothetical. Don't get overly hung up on the details of the
> >imaginary study.
> >
> >But let me refine the hypo a little:
> >
> >Scenario 1: The record shows that the school board's motives were
> >strictly scientific. The board had no motive but to engage in a
> >scientific study of whether prayer produces a biochemical recation
> >that correlates with an improvement in standardized test scores.
> >However, the study's methodology is considered "junk science" by the
> >scientific community. The theory underlying the study has been shown
> >to be false in numerous peer-reviewed articles, and the proposed
> >methodology ignores basic principles of statistical design.
> >
> >Scenario 2: The underlying theory, design and methodology of the
> >study are soundly scientific. However, the record shows that the
> >school board had religious motives. None of the school board members
> >were concerned with the science at all; they were concerned only with
> >getting prayer into the public schools. These school board members
> >were savvy and devious enough, however, to involve outside experts in
> >the study who were truly interested in the science of the study,
> >without disclosing their religious motives to those outside experts.
> >
> >Under the "purpose" prong of the Lemon test, the results might differ
> >under these two scenarios, but the difference would have nothing to do
> >with whether the study meets the criteria of "science." Under
> >Scenario 1, the school board's actions clearly pass Lemon's "purpose"
> >prong, even though the study isn't "science."
> >
>
> On the contrary, lacking a valid secular purpose, the first scenario
> would inevitably fail the secular purpose prong of Lemon.
>
> In fact in Dover, the plaintiffs argued that
>
> "This Court should similarly reject any suggestion by defendants or
> their amici that this Court cannot evaluate whether intelligent design
> is science in order to determine whether there could be a secular
> purpose in presenting
> it to students in a public-school science class."
>
> After all, if there were a valid secular purpose, then the Lemon prong
> would survive."
>
> "While the Court is normally deferential to a State's articulation of a
> secular purpose, it is required that the
> statement of such purpose be sincere and not a sham."
> Edwards, 482 U.S. at 586-87
>
> Similarly
>
> "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"
>
> If no valid secular purpose can be found, then the establishment clause
> has been violated...
>
> I still would like to see some evaluation of my example in which the
> motives of the board were clearly religious in requiring evolutionary
> theory to be taught. Would this violate the establishment clause? Would
> the mere fact that to many observers, evolution has religious
> implications, make evolution failing the endorsement test? Again, the
> presence of a valid secular purpose is an essential requirement here to
> help decide the case. Absence of any secular purpose, the act would fail
> but if a valid and sincere secular purpose can be found this has to be
> taken into consideration.
>
> >Under Scenario 2, the
> >school board's actions clearly fail Lemon's "purpose" prong, even
> >though the study is validly considered "science."
> >
> >
> So the findings seem to be that being science is not sufficient but
> lacking any scientific (secular) purpose the courts are likely to find
> in favor of the Lemon purpose prong violation. Although I am still not
> convinced that the study, as you argue, serves a valid secular purpose,
> certainly it does not seem to be meeting most of the rules which would
> make it science. A valid study methodology hardly makes something
> scientific.
>
> >The point is that the definitive consideration under Lemon's "purpose"
> >prong isn't the study's status as "science," it's the school board's
> >motives.
> >
> Not necessarily, even if the motives were to be religiously motivated,
> there may still be a valid secular purpose. So I argue that lacking a
> valid secular purpose, there is no such defense. This is what happened
> in Dover, the defendants claimed that their religious statements were
> irrelevant since there is ID has a sincere secular purpose, namely it
> being science.
>
>
>
> >The "endorsement" test asks questions about human
> >perceptions: do people affected by the policy perceive a government
> >endosement of religion. The "purpose" prong of Lemon asks questions
> >about human motives: what motivated the people who adopted or
> >enforced the government policy. In neither instance does the actual
> >status of the policy as "science," "not science," "ham sandwich," or
> >some other categorical label matter. What matters is only perception
> >and motive.
> >
> >
> Not according the the SC which ruled that if the law or act has a
> secular purpose, then the purpose prong may not have been violated.
>
Received on Thu Jan 5 09:55:11 2006