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

David Opderbeck wrote:

> /Sure, Dort is wrong, Judge Jones is wrong, I am wrong.../
>
> You got it. The argument from authority is, of course, specious.
>

So your legal expertise and background are in no way helpful in
resolving who is right? That's helpful but as I have shown, there are
good reasons to believe why the Judge who considered a ruling on ID
being science essential to an establishment clause violation should be
taken seriously. I have provided an indepth analysis based on case law
as to why the ruling whether ID is science was all but inevitable.
Michael Dorf also seems to have reached a much similar conclusion, even
before the judge ruled on these matters. Of course the defendants
argument rejecting an establishment clause violation because it served a
valid secular primary purpose all but required the Judge to address this
defense as case law shows that in case of a valid primary secular
purpose, a law may not necessarily violate the establishment clause even
though there are other non-secular purposes or effects.

> think what we're bumping up against here is the limitations of the
> establishment clause. The short answer is no, I don't think
> most courts would not bar the teaching of evolution under the
> establishment clause even if it could be shown that a school board's
> motivations were primarily to promote atheism. This isn't because
> atheism or materialism are "scientific." It's because they don't
> possess the traditional indicia of a "religion." Here, for example,
> is how the Third Circuit has defined a "religion" for first amendment
> purposes, in Judge Adams' influential concurring opinion in Malnak v.
> Yogi, 592 F.2d 197 (3rd Cir. 1979) (a case, incidentally, that was
> argued by one of my former partners).

Again, the establishment is not just about something being religious but
also being hostile to religion. As such the conclusion by David that
there is no establishment clause violation because atheism is not a
religion is irrelevant. The questions are if the motivations are
anti-religious.

> What showed the Dover board's purpose to be a sham was not the bucket
> into which we ultimately dump ID -- "science" or "not science" -- it
> is the history of the board's actions, which showed a deliberate
> effort to introduce specific teachings about the doctrine of creation
> drawn from a recognized religion, Christianity.

And that their claimed secular primary purpose was a sham because ID is
not science. Remember that the history of the subjective purposes of the
board are irrelevant if there is a primary secular purpose. Courts give
typically a lot of deferrence to the board when it comes to 'purpose'.
But if their stated purpose is a sham then it seems clear an
establishment violation is all but inevitable.

> Maybe this demonstrates that our establishment clause jurisprudence is
> a mess. Does this have any connection to what the framers and
> ratifiers of the Constitution meant by the government establishing
> religion? Are fuzzy concepts like "motive" and "public perception"
> good tools for deciding such difficult questions? Should atheism be
> recognized as something like a religion for purposes of the free
> exercise clause while being skated over under the establishment
> clause? Mabye not, but the law is what it is.

Indeed, there is clear case law as to how to decide establishment clause
violations. Since case law also shows that the courts should be
reluctant to interpret subjective purpose and rely on stated purpose
when evaluating, the fact that the stated purpose was a sham and
insincere is an essential finding.
In fact, as David knows, the SC has been moving away from the idea of a
subjective purpose towards 'objective purpose' .
Received on Mon Jan 9 13:37:01 2006