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

No one should base their opinion on my expertise. Read the precedents for
yourself and judge for yourself. My experience as a courtroom lawyer,
however, is valuable not as a source of authority, but as a source of
empirical data concerning how the courts actually work. Specifically, my
extensive experience rebuts your unsupported assertion that the court was
required to write a lengthy opinion and/or to address every argument the
parties raised. As to that data point, perhaps you think I'm lying, or
perhaps you think I'm wrong, but I haven't seen you present any emprical
evidence to the contrary (because there is none).

As to the atheism question, once again I've gone to the trouble of providing
you with some actual case law which shows why your position fails, and once
again you try to sidestep it with the "purpose" mantra divorced from the
rich context I've provided.

*In fact, as David knows, the SC has been moving away from the idea of a
> subjective purpose towards 'objective purpose' .*

No, the court has been moving away from subjective purpose of the legislator
to the subjective perception of the public. The question now seems to be
not so much what the legislator intended as whether the public perceives an
"endorsement" of religion. It's odd how you bounce back and forth between
"purpose" and "endorsement" like a ping-pong ball. As I've said at least a
half-dozen times now, the big, "objective" question whether ID is "science"
is irrelevant both to what the legislators intended (purpose) and to what
the public perceives ("endorsement"). * *

On 1/9/06, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
> 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 13:49:54 2006