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

David Opderbeck wrote:

> 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.

An I respectfully disagree with your opinion. While your experience may
lead you to this conclusion, factual case law seems to grant little
credibility. In addition, Judge Jones' own statement that the ruling was
essential should be taken into consideration. While one may reject his
statement, I argue that case law and logic inevitably lead the
conclusion that one need to determine if stated primary secular purpose
is a sham or not. In other words, if the board had made the exactly same
arguments, and instead of ID they insisted on teaching evolution, then a
primary secular purpose exists which may override any secondary
purposes. In other words, the scientific nature of evolution is
essential, the lack of a valid secular purpose, namely the teaching of
ID as a valid science, is why the establishment clause violation is
almost inevitable.

> 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).
>
On the contrary, I have shown through case law, logic, Judge Jones' own
statement, the arguments presented by the plaintiffs and defendants how
the conclusion is all but inevitable. In addition, I feel supported by
both Judge Jones statement and Michael Dorf's analysis, even before the
judge ruled on the issue.

> 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, you have done nothing to support your position. According to
David the court would have had to find against a board even if it raises
a valid secular purpose.

> /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.
>
And thus from a subjective to an objective purpose. Purpose and
endorsement are intrivally linked. In fact the endorsement test
incorporates much of the first two prongs of Lemon.

> 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"). /
> /
>

That is incorrect, if the legislator raises a valid secular purpose then
intentions are secondary to what their statements were. And what the
public perceives, need to be seen in context of the existence of a valid
secular purpose. If ID had been shown to be a science, the ruling would
have been much different. Case law, precedent all support this simple
fact. In Edwards, the issue was whether or not Creation Science was
science and thus had a valid secular purpose, since the legislative
history showed that creation science was not scientific and strongly
religious the Edwards court found it not hard to reject the claims. In
the Kitzmiller case, legislative history says nothing about the nature
of ID, whether it is primarily scientific. Note that the judge did not
rule that ID is religious, this is irrelevant. Lacking a valid secular
purpose makes an establishment clause violation almost inevitable.
Read the various references I provided you on this topic.

The simplest way of seeing this is by replacing ID with evolution and
keeping everything else the same. According to David, the court would
have had to rule as it did in the case of ID, rejecting evolution
because of the legislative history of the board. In addition, people may
consider evolution contrary to their religious beliefs and thus hostile
to religion. In other words, the effect of such a law may very well be
an endorsement violation, if one fails to take into consideration the
existence of a valid primary secular purpose.

Hope this clarifies.
Received on Mon Jan 9 22:24:34 2006