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

David Opderbeck wrote:

> 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.

And lacking a valid secular purpose, it fails the Lemon purpose test.
This is an inevitable consequence of the rulings in this area.

>
> 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.

That's fascinating, since I may very well argue the same about your
arguments then. So let me try again: If a board argues that there is a
valid secular purpose to a particular law then according to the SC
rulings in this area, the purpose prong may not have been violated.
However, lacking any valid secular purpose, the purpose prong will be
violated.

> 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.

Since both the endorsement test and Lemon prong 1 overlap, there is also
the issue of purpose. I am not talking about effect here but about valid
secular purpose. If there were no purpose issue then the courts would
have to rule that evolution fails the endorsement test since an ordinary
informed citizen may perceive evolution as a disaproval or religion or
even an endorsement of one.

>
> 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.

You are not misconstruing the Lemon prong with is not 'religious
purpose' but rather valid secular purpose. Evolution would not fail the
endorsement test or the Lemon purpose prong because it has a valid
secular purpose, not just because it has been ruled not to be a
religion. In fact, something still may have religious implications, as
long as it has a valid secular primary purpose which is sincere and not
a sham.

So in other words, whether or not something is science will make the
difference between valid secular purpose and no valid secular purpose.
As such, determination of claimed valid secular purposes would be
essential to the ruling. Look for instance at Edwards v Aguillard where
Scalia argued that the Louisiana legislators where not genuinely
motivated by religion and that even if that were their purpse, the
existence of a valid secular purpose would be overriding.
Just because something has religious purposes, does not necessarily mean
that it fails the purpose prong as long as there is an overriding valid
secular purpose.
Received on Thu Jan 5 12:43:25 2006