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

David Opderbeck wrote:

> /In other words, requiring to teach evolution would be unconstitutional
> > if the legislators had other motives in addition to the claimed secular
> > purpose?/
>
> If their motives were to promote a particular religion (as the courts
> understand "religion"), that is correct.

One has to be careful here since the SC realizes that a particular law
can have particular religous purposes/motives and yet still be
constitutional as long as there exists a primary secular purpose which
is neither insincere nor a sham.
So if, as the Board did, the stated motive was to teach scientific
alternatives to evolutionary science, which includes ID then there may
indeed be a valid secular purpose. Looking merely at the legislative
record may find legislators presenting their own interpretation or
motives for supporting the secular purpose.

>
> /So irregardless of whether or not there exists a secular purpose
> > (motive) you would consider the existence of 'motives' to be solely
> > guided by the 'motives' of the legislators, even if it serves a primary
> > secular purpose?/
>
> Yes! I think you're misunderstanding what "purpose" means in the
> Lemon test. "Purpose" means the government's motive or intent in
> adopting a particular policy. Period. It doesn't mean the end result
> or effect of the policy.

Since I do not misunderstand the meaning of purpose, I fail to see the
relevance of your comment. Purpose and effect are two prongs in Lemon
and are considered together in the endorsement test.

> /Teaching something as a science even though it
> > has significant religious implications may still pass the endorsement
> > test (public perception), as long as a valid secular purpose, in this
> > case 'teaching science' exists./
>
> This is another instance where you confuse purpose and effect
> (endorsement). Purpose and effect (endorsement) are separate tests,
> or rather, endorsement is a truncation of the Lemon test in which
> purpose isn't significant.

That's where we disagree, purpose is essential as this is what the
observer is evaluating. Endorsement is a truncation of the Lemon test
where purpose and effect are evaluated by an "objective observer" rather
than by subjective analyses of the claimed and inferred legislative intents.

> And logically, this makes sense. Many times, things don't happen as
> we intend, and/or our actions have unintended consequences. The
> government might intend to promote religion, but it might fail to
> achieve what it intended, and the public might not percieve any
> endorsement of religion. Or, the government's intent might be benign,
> but the public might nevertheless percieve some endorsement of religion.

Thus the existence of a valid secular purpose may be very relevant to
the intent of the legislature.

> Alternatively, the government might intend to promote religion in a
> deceptive way that will not be percieved as an endorsement of religion
> by the public. This is why we keep intent and effect analytically
> separate, examine them both, and require a governmental policy to pass
> muster under both intent and effect.
>

Under the endorsement test, the issue of purpose and effect are
intimately linked. Under Lemon they are separate but since failure of
anyone of them fails Lemon, the endorsement test is more as you describe
it above, how would an 'objective observer' view the law.

> You point out that when examining purpose, a statement of legislative
> intent is ordinarily taken at face value, unless the circumstances
> show it to be a sham. No one disputes this. Legislatures often write
> a self-serving statement of purpose into the text of a law. We look
> beyond that to the legislative history and the circumstances
> surrounding the adoption of the legislation to determine whether that
> statement of intent is sincere. But the relevant inquiry is still
> "what was the legislature's subjective intent?"

And the existence of a valid secular purpose is thus very relevant in
understanding the intent. Subjective legislature intent versus a more
objective secular purpose should all be considered.

>
> I'd still like to see a simple, straightforward outline of your
> position, in your own words.
>
I believe I have done that several times now.

Lack of a valid secular purpose, would almost inevitably invalidate a
law while the existence of a valid primary secular purpose may outweigh
other religious purposes. The effect of this is that while there may
exists religious purposes, to an objective observer the effect may still
be secular because of the existence of a strong primary secular purpose.
The board claimed that they had a valid secular purpose which would
outweigh incidental purposes or motives.
Received on Tue Jan 10 16:38:29 2006