Traipsing into breathtaking inanity -- absurd rulings in Dover Intelligent Design case
New Item Added on 4-27-06: Item #20
Many Darwinists have praised Judge Jones` written opinion and procedural rulings in the Kitzmiller v. Dover case as flawless and brilliant. Nothing could be further from the truth. Many flaws can be found without even considering Jones` reasoning on the issues of whether ID is science and whether ID appears to be an endorsement of religion. Flaws in Jones` rulings on those issues are presumably covered in a new book titled "Traipsing into Evolution," prepared by the Discovery Institute. My criticisms below concentrate mainly on the other flaws in Jones` rulings. The page numbers shown refer to the Dover opinion. The Dover opinion is on http://www2.ncseweb.org/kvd/all_legal/2005-12-20_kitzmiller_decision.pdf and other documents in the case may be found on http://www2.ncseweb.org/kvd/ .
While lavishly praising Judge Jones' rulings, the Darwinists have been very intolerant of criticism of those rulings, acting as if the losers do not have the right to criticize.
Here are my criticisms of Judge Jones` rulings in the Dover case --
(1) For perhaps only the second time in American history (the Selman v. Cobb County evolution-disclaimer textbook sticker case was possibly the first), a judge ruled that something — irreducible complexity in this case — that makes no mention of anything related to religion and that contains no religious symbols constitutes a government endorsement of religion. Whether or not irreducible complexity is bogus science is irrelevant, because there is no constitutional separation of bogus science and state.
(2) It was not necessary to rule on the scientific merits of ID at all. Jones had the following other options: (i) ruling against the defendants solely on the basis of their religious motivations, or (ii) ruling that irreducible complexity is not religious because it does not mention anything related to religion. An additional reason for ruling on narrow grounds was that the original defendants could not appeal because they were voted off the school board. If the new school board -- consisting mostly of anti-ID members who had replaced former pro-ID members -- had rescinded the ID policy and offered a complete out-of-court settlement before the release of the decision, Jones would arguably have had grounds for declaring the case to be moot.
(3) Jones arrogantly assumed that his opinions are conclusive and that other judges should not bother to independently judge the same issues. The Dover opinion said, “[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.“(pages 63-64) Presumably one of the reasons for this ballyhoo of the Dover opinion was that Judge Jones knew that the case was not likely to be appealed and hence the opinion would likely have little intrinsic precedential value as just an unreviewed district-court opinion.
(4) Jones‘ blanket prohibition of any scientific criticism of Darwinism in Dover public-school science classes directly contradicts the Supreme Court‘s following statement in Edwards v. Aguillard: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.“ In the conclusion section of the Dover opinion, Jones said that one of the three prohibitions that he intended to include in the official order was a prohibition against “requiring teachers to denigrate or disparage the theory of evolution“ (Page 138. This specific prohibition was not actually included in the official order, but that is beside the point).
(5) Though the case was supposed to be about intelligent design in general and not about a particular book about intelligent design, Jones treated the book selected by the Dover school board, Of Pandas and People, as central to the case. There are several books about ID, but I believe that only one other book about ID was discussed in the case, Darwin`s Black Box by defense expert witness Michael Behe. The name of the Pandas book appears 74 times in the 139-page opinion, about half the appearances concerning the book`s contents and about half concerning the school board`s selection of the book. A large part of the Dover opinion is essentially a highly unfavorable book review of Pandas.
(6) Jones denied the Pandas book publisher‘s motion to enter the case as an intervenor and then he thoroughly panned the book in his written opinion. Jones called the motion untimely, even though the motion was filed only a month after the plaintiffs subpoenaed the publisher, Foundation for Thought and Ethics, and a whopping four months before the start of the trial. The publisher should have been admitted as an intervenor to give it the right to file an independent appeal, if for no other reason. Considering that the book was thoroughly trashed in the written opinion and that the publisher had no opportunity to file an independent appeal, the claim that the publisher‘s interests were adequately protected is especially hollow. Court documents on the publisher's motion to intervene are here. In a comment thread titled "Jon Buell and the Dover ruling" , I demolished Judge Jones' reasons for denying the publisher's motion to intervene, particularly in my last comment in the thread ( I commented under the name LarryFarma ).
(7) Jones rejected an amicus brief from the Discovery Institute on the grounds that this brief was a “back door“ way of introducing the "unrebutted" ideas of Dembski and Meyer — who had withdrawn as expert witnesses for the defense — into the case file. A revision of DI`s amicus brief was later admitted to the record. Jones accepted a brief that replied to DI`s amicus brief ( briefs replying to amicus briefs are expressly prohibited only at the Supreme Court level ) and amicus briefs carry far less weight than oral trial testimony, so there was no advantage to using this “back door“ approach. References -- http://www2.ncseweb.org/kvd/index.php?path=all_legal%2Famicus/
(8) The Dover opinion gauged public opinion about the school board‘s ID rule by counting editorials and letters to the editor in local newspapers (pages 58-63). Jones` counts of the editorials and letters were made on the basis of whether or not they mentioned religion, so an editorial or letter asserting that ID is not an endorsement of religion counted the same as one asserting that ID is an endorsement of religion. A less meaningful way of gauging public opinion on this issue could scarcely be imagined. The Dover opinion presented very little precedent for this public-opinion polling method of counting editorials and letters to the editor (page 62).
(9) Showing blatant prejudice, the Dover opinion said that the answer to the question of “whether ID is science … can likely be predicted“ by the opinion‘s determination that “both an objective student and an objective adult member of the Dover community would perceive Defendants‘ conduct to be a strong endorsement of religion pursuant to the endorsement test “ (page 63). The two analyses -- on whether ID is science and whether an objective observer would perceive ID as an endorsement of religion -- are supposed to be completely independent, and the results of one are not supposed to "likely predict" the results of the other. For example, astrology and alchemy are not science but an objective observer would probably not perceive them to be endorsements of religion.
(10) The Dover opinion quoted a normally-privileged attorney-client message that was received by the defendants and used this message to bash them, and gave no explanation as to how this message lost its privilege (pages 111-112). It was revealed in the trial testimony that the defendants gave the message to the plaintiffs ( I have no idea why -- the message was very damaging to the defendants )
(11) Jones created confusion by stating in the conclusion section that three specifically-worded prohibitions were going to be included in the official order and then including only one of them in the official order (pages 138-139). The two omitted prohibitions were not covered by the one prohibition that was included.
(12) Jones appeared to take unfair advantage of the fact that the ousted original school board members and their legal representatives had no chance to have the decision reviewed by a higher court. Jones might have shown more restraint in his written opinion had there been a reasonable chance of appeal.
(13) Jones said that the school board election results -- where pro-ID members were replaced by anti-ID members -- would have no effect on his decision. This statement constituted giving unnecessary legal advice to the new school board members and possibly helped discourage them from considering a former board member`s proposal -- presented at the first meeting of the new board on Dec. 5 -- to seek an out-of-court settlement with the plaintiffs.
(14) Jones pandered to both the ID policy`s opponents and concerned taxpayers by accusing the defendants of "activism" (while denying that he himself was an activist), "breathtaking inanity," and dragging the students, parents, and teachers of the Dover Area School District "into this legal maelstrom, with its resulting utter waste of monetary and personal resources." (pages 137-138). He should not have put his negative personal opinions of the defendants into the opinion. He wrote the opinion to be -- in the words of Kansas University Prof. Paul "Evil Dr. P." Mirecki -- a "nice slap in the big fat face of the fundies."
(15) The Dover opinion contains dogmatic statements of opinion on questions that are really philosophical rather than legal or constitutional. For example, the Dover opinion says --
"Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator. " (page 136)
(16) Jones apparently signed the plaintiffs‘ original calculated $2 million+ attorney fee award request, even though there was no need for him to do so because the parties had reached an out-of-court settlement of $1 million. One of the plaintiffs‘ attorneys admitted that the purpose of having the judge sign the request for the larger amount was to help blackmail other school boards in the future.
(17) Only "reasonable" attorney fee awards are allowed under the law, but Jones never said that he was going to reduce the plaintiffs` calculated fee award on the grounds that they had a grossly excessive number of attorneys of record, 9-10, with at least five of those attorneys being in the courtroom on every day of the 6-week trial ( see ttp://www.philly.com/mld/inquirer/13928874.htm ). In contrast, the defendants had just 4 attorneys of record -- three from the Thomas More Law Center and one local attorney ( who might not have played an important role in the case ).
(18) There ought to be a general principle that judges should not rule on the scientific merits of ideas unless doing so is absolutely essential to reach a decision in the case. Such rulings are essential in, say, product liability cases, but -- as shown above -- such a ruling was not essential in the Dover ID case. Courts have no general legal or constitutional authority to settle disputes on scientific issues, and the courts are ill-suited to settle such disputes, e.g., the Supreme Court said in Daubert v. Merrell Dow Pharmaceuticals, "....there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly." Eighty-five scientists filed an amicus brief in the Dover case urging the judge to refrain from ruling on the scientific merits of ID.
(19) If Judge Jones had followed the precedent of the Edwards v. Aguillard creation-science case, he would have refused to hear expert witness testimony on the grounds that none of the expert witnesses had participated in or contributed to the enactment of the Dover school board's ID policy. The syllabus of Edwards v. Aguillard said, "The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. Pp. 594-596." (the "appellants" were government officials of Louisiana). The Dover school board members showed that they were motivated by religion and furthermore that they could not possibly have intended a legitimate secular purpose because their testimony showed that they did not understand what ID really is. There is no such thing as an "unintentional" purpose -- purposes are by definition intentional. So there was no purpose in judging the scientific merits of ID to see if ID had some "unintended" secular purpose.
(20) New Item (added 4-27-06) -- Ironically, the Dover decision, itself just an unreviewed district-court decision, relies very heavily on other unreviewed district-court decisions. Two other unreviewed district-court decisions, McLean v. Arkansas Board of Education and Selman v. Cobb County (now under appeal), were named in the Dover opinion 28 times and 15 times, respectively ( I say "named" rather than "cited" because the name may sometimes appear more than once in a single citation). In comparison, two Supreme Court decisions, Edwards v. Aguillard (incorrectly named Edwards v. Arkansas in the first citation) and Epperson v. Arkansas, were named in the Dover opinion just 35 times and 18 times, respectively. An unreviewed opinion of a single district-court judge will reflect that judge's unrestrained prejudices, whims, and eccentricities. Furthermore, when a district-court decision is unreviewed, there is of course no review of criticism of that decision, and some of a judge's reasoning in the opinion may have been a complete surprise. District-court opinions' value as precedent is so questionable that the huge 9th circuit federal court of appeals had a rule -- I don't know if this rule is still in effect -- prohibiting citation of a district-court opinion in any court of the 9th circuit. Hence, the Dover opinion's numerous citations of McLean and Selman would not have even been allowed under this 9th circuit rule, which still might be in effect.
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"The world must construe according to its wits. This court must construe according to the law." -- Sir Thomas More, in the play "A Man for All Seasons."
Many Darwinists have praised Judge Jones` written opinion and procedural rulings in the Kitzmiller v. Dover case as flawless and brilliant. Nothing could be further from the truth. Many flaws can be found without even considering Jones` reasoning on the issues of whether ID is science and whether ID appears to be an endorsement of religion. Flaws in Jones` rulings on those issues are presumably covered in a new book titled "Traipsing into Evolution," prepared by the Discovery Institute. My criticisms below concentrate mainly on the other flaws in Jones` rulings. The page numbers shown refer to the Dover opinion. The Dover opinion is on http://www2.ncseweb.org/kvd/all_legal/2005-12-20_kitzmiller_decision.pdf and other documents in the case may be found on http://www2.ncseweb.org/kvd/ .
While lavishly praising Judge Jones' rulings, the Darwinists have been very intolerant of criticism of those rulings, acting as if the losers do not have the right to criticize.
Here are my criticisms of Judge Jones` rulings in the Dover case --
(1) For perhaps only the second time in American history (the Selman v. Cobb County evolution-disclaimer textbook sticker case was possibly the first), a judge ruled that something — irreducible complexity in this case — that makes no mention of anything related to religion and that contains no religious symbols constitutes a government endorsement of religion. Whether or not irreducible complexity is bogus science is irrelevant, because there is no constitutional separation of bogus science and state.
(2) It was not necessary to rule on the scientific merits of ID at all. Jones had the following other options: (i) ruling against the defendants solely on the basis of their religious motivations, or (ii) ruling that irreducible complexity is not religious because it does not mention anything related to religion. An additional reason for ruling on narrow grounds was that the original defendants could not appeal because they were voted off the school board. If the new school board -- consisting mostly of anti-ID members who had replaced former pro-ID members -- had rescinded the ID policy and offered a complete out-of-court settlement before the release of the decision, Jones would arguably have had grounds for declaring the case to be moot.
(3) Jones arrogantly assumed that his opinions are conclusive and that other judges should not bother to independently judge the same issues. The Dover opinion said, “[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.“(pages 63-64) Presumably one of the reasons for this ballyhoo of the Dover opinion was that Judge Jones knew that the case was not likely to be appealed and hence the opinion would likely have little intrinsic precedential value as just an unreviewed district-court opinion.
(4) Jones‘ blanket prohibition of any scientific criticism of Darwinism in Dover public-school science classes directly contradicts the Supreme Court‘s following statement in Edwards v. Aguillard: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.“ In the conclusion section of the Dover opinion, Jones said that one of the three prohibitions that he intended to include in the official order was a prohibition against “requiring teachers to denigrate or disparage the theory of evolution“ (Page 138. This specific prohibition was not actually included in the official order, but that is beside the point).
(5) Though the case was supposed to be about intelligent design in general and not about a particular book about intelligent design, Jones treated the book selected by the Dover school board, Of Pandas and People, as central to the case. There are several books about ID, but I believe that only one other book about ID was discussed in the case, Darwin`s Black Box by defense expert witness Michael Behe. The name of the Pandas book appears 74 times in the 139-page opinion, about half the appearances concerning the book`s contents and about half concerning the school board`s selection of the book. A large part of the Dover opinion is essentially a highly unfavorable book review of Pandas.
(6) Jones denied the Pandas book publisher‘s motion to enter the case as an intervenor and then he thoroughly panned the book in his written opinion. Jones called the motion untimely, even though the motion was filed only a month after the plaintiffs subpoenaed the publisher, Foundation for Thought and Ethics, and a whopping four months before the start of the trial. The publisher should have been admitted as an intervenor to give it the right to file an independent appeal, if for no other reason. Considering that the book was thoroughly trashed in the written opinion and that the publisher had no opportunity to file an independent appeal, the claim that the publisher‘s interests were adequately protected is especially hollow. Court documents on the publisher's motion to intervene are here. In a comment thread titled "Jon Buell and the Dover ruling" , I demolished Judge Jones' reasons for denying the publisher's motion to intervene, particularly in my last comment in the thread ( I commented under the name LarryFarma ).
(7) Jones rejected an amicus brief from the Discovery Institute on the grounds that this brief was a “back door“ way of introducing the "unrebutted" ideas of Dembski and Meyer — who had withdrawn as expert witnesses for the defense — into the case file. A revision of DI`s amicus brief was later admitted to the record. Jones accepted a brief that replied to DI`s amicus brief ( briefs replying to amicus briefs are expressly prohibited only at the Supreme Court level ) and amicus briefs carry far less weight than oral trial testimony, so there was no advantage to using this “back door“ approach. References -- http://www2.ncseweb.org/kvd/index.php?path=all_legal%2Famicus/
(8) The Dover opinion gauged public opinion about the school board‘s ID rule by counting editorials and letters to the editor in local newspapers (pages 58-63). Jones` counts of the editorials and letters were made on the basis of whether or not they mentioned religion, so an editorial or letter asserting that ID is not an endorsement of religion counted the same as one asserting that ID is an endorsement of religion. A less meaningful way of gauging public opinion on this issue could scarcely be imagined. The Dover opinion presented very little precedent for this public-opinion polling method of counting editorials and letters to the editor (page 62).
(9) Showing blatant prejudice, the Dover opinion said that the answer to the question of “whether ID is science … can likely be predicted“ by the opinion‘s determination that “both an objective student and an objective adult member of the Dover community would perceive Defendants‘ conduct to be a strong endorsement of religion pursuant to the endorsement test “ (page 63). The two analyses -- on whether ID is science and whether an objective observer would perceive ID as an endorsement of religion -- are supposed to be completely independent, and the results of one are not supposed to "likely predict" the results of the other. For example, astrology and alchemy are not science but an objective observer would probably not perceive them to be endorsements of religion.
(10) The Dover opinion quoted a normally-privileged attorney-client message that was received by the defendants and used this message to bash them, and gave no explanation as to how this message lost its privilege (pages 111-112). It was revealed in the trial testimony that the defendants gave the message to the plaintiffs ( I have no idea why -- the message was very damaging to the defendants )
(11) Jones created confusion by stating in the conclusion section that three specifically-worded prohibitions were going to be included in the official order and then including only one of them in the official order (pages 138-139). The two omitted prohibitions were not covered by the one prohibition that was included.
(12) Jones appeared to take unfair advantage of the fact that the ousted original school board members and their legal representatives had no chance to have the decision reviewed by a higher court. Jones might have shown more restraint in his written opinion had there been a reasonable chance of appeal.
(13) Jones said that the school board election results -- where pro-ID members were replaced by anti-ID members -- would have no effect on his decision. This statement constituted giving unnecessary legal advice to the new school board members and possibly helped discourage them from considering a former board member`s proposal -- presented at the first meeting of the new board on Dec. 5 -- to seek an out-of-court settlement with the plaintiffs.
(14) Jones pandered to both the ID policy`s opponents and concerned taxpayers by accusing the defendants of "activism" (while denying that he himself was an activist), "breathtaking inanity," and dragging the students, parents, and teachers of the Dover Area School District "into this legal maelstrom, with its resulting utter waste of monetary and personal resources." (pages 137-138). He should not have put his negative personal opinions of the defendants into the opinion. He wrote the opinion to be -- in the words of Kansas University Prof. Paul "Evil Dr. P." Mirecki -- a "nice slap in the big fat face of the fundies."
(15) The Dover opinion contains dogmatic statements of opinion on questions that are really philosophical rather than legal or constitutional. For example, the Dover opinion says --
"Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator. " (page 136)
(16) Jones apparently signed the plaintiffs‘ original calculated $2 million+ attorney fee award request, even though there was no need for him to do so because the parties had reached an out-of-court settlement of $1 million. One of the plaintiffs‘ attorneys admitted that the purpose of having the judge sign the request for the larger amount was to help blackmail other school boards in the future.
(17) Only "reasonable" attorney fee awards are allowed under the law, but Jones never said that he was going to reduce the plaintiffs` calculated fee award on the grounds that they had a grossly excessive number of attorneys of record, 9-10, with at least five of those attorneys being in the courtroom on every day of the 6-week trial ( see ttp://www.philly.com/mld/inquirer/13928874.htm ). In contrast, the defendants had just 4 attorneys of record -- three from the Thomas More Law Center and one local attorney ( who might not have played an important role in the case ).
(18) There ought to be a general principle that judges should not rule on the scientific merits of ideas unless doing so is absolutely essential to reach a decision in the case. Such rulings are essential in, say, product liability cases, but -- as shown above -- such a ruling was not essential in the Dover ID case. Courts have no general legal or constitutional authority to settle disputes on scientific issues, and the courts are ill-suited to settle such disputes, e.g., the Supreme Court said in Daubert v. Merrell Dow Pharmaceuticals, "....there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly." Eighty-five scientists filed an amicus brief in the Dover case urging the judge to refrain from ruling on the scientific merits of ID.
(19) If Judge Jones had followed the precedent of the Edwards v. Aguillard creation-science case, he would have refused to hear expert witness testimony on the grounds that none of the expert witnesses had participated in or contributed to the enactment of the Dover school board's ID policy. The syllabus of Edwards v. Aguillard said, "The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. Pp. 594-596." (the "appellants" were government officials of Louisiana). The Dover school board members showed that they were motivated by religion and furthermore that they could not possibly have intended a legitimate secular purpose because their testimony showed that they did not understand what ID really is. There is no such thing as an "unintentional" purpose -- purposes are by definition intentional. So there was no purpose in judging the scientific merits of ID to see if ID had some "unintended" secular purpose.
(20) New Item (added 4-27-06) -- Ironically, the Dover decision, itself just an unreviewed district-court decision, relies very heavily on other unreviewed district-court decisions. Two other unreviewed district-court decisions, McLean v. Arkansas Board of Education and Selman v. Cobb County (now under appeal), were named in the Dover opinion 28 times and 15 times, respectively ( I say "named" rather than "cited" because the name may sometimes appear more than once in a single citation). In comparison, two Supreme Court decisions, Edwards v. Aguillard (incorrectly named Edwards v. Arkansas in the first citation) and Epperson v. Arkansas, were named in the Dover opinion just 35 times and 18 times, respectively. An unreviewed opinion of a single district-court judge will reflect that judge's unrestrained prejudices, whims, and eccentricities. Furthermore, when a district-court decision is unreviewed, there is of course no review of criticism of that decision, and some of a judge's reasoning in the opinion may have been a complete surprise. District-court opinions' value as precedent is so questionable that the huge 9th circuit federal court of appeals had a rule -- I don't know if this rule is still in effect -- prohibiting citation of a district-court opinion in any court of the 9th circuit. Hence, the Dover opinion's numerous citations of McLean and Selman would not have even been allowed under this 9th circuit rule, which still might be in effect.
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"The world must construe according to its wits. This court must construe according to the law." -- Sir Thomas More, in the play "A Man for All Seasons."
Labels: Kitzmiller v. Dover (2 of 2)
posted by Larry Fafarman | 4/15/2006 08:19:00 PM
61 Comments:
I am surprised that you are still flogging this dead horse.
The Dover board acted unconstitutionaly, got caught out and lost a case.
Pandas and people is a creationist book. Just swapping the words creation/creator to design/designer does not alter that.
Congrats on your own blog btw.
Oops. Can't see my name.
The comment by "anonymous" was by myself, Stephen Elliott.
Reply to Stephen Elliott (alias "anonymous" ) --
>>>I am surprised that you are still flogging this dead horse.<<<
I am still flogging it because it is not dead and is not going to be dead for a long time, if ever. Though the Dover opinion is just an unreviewed federal district-court opinion of a single judge, the opinion's supporters want it to become an important precedent, in the same way that McLean v. Arkansas Board of Education, also an unreviewed district-court opinion, became an important precedent. So the more we opponents of the Dover opinion can discredit it, the better it will be for us.
>>>Pandas and people is a creationist book. Just swapping the words creation/creator to design/designer does not alter that.<<<
Whatever. But I made the point (item #5 in my list) that the book should not have been a major issue in the case, because the case was supposed to be about ID and not about a particular book about ID. There are many other books about ID.
>>>Congrats on your own blog btw.<<<
Thanks. I am learning that having your own blog has lots of advantages other than just freedom from censorship (my original reason for creating this blog).
The reason "Pandas" was heavily covered in the trial and opinion, is that was the book recomended to students to read as an alternative theory to evolution.
What else could anyone do?
Remember. The board wanted mentioned in a science class that a scientific theory had an equaly valid alternative. hat alternative was explained in a school library book. That book being "Pandas".
/Stephen Elliott
This comment has been removed by a blog administrator.
Stephen Elliott wrote --
>>>The reason "Pandas" was heavily covered in the trial and opinion, is that was the book recomended to students to read as an alternative theory to evolution.<<<
As I said, the case was supposed to be about ID and not about a particular book about ID. There are now several other books about ID, and more may written in the future. Though the case ended up just producing an unreviewed district-court opinion, it was originally hoped that the case would be appealed and thus become a broadly applicable precedent on how to deal with ID in the public schools. As it is, supporters of the opinion are hoping that it will be widely accepted as precedent even though it is only an unreviewed district-court opinion. Furthermore, Judge Jones did not say that another book on ID might be acceptable -- he just banned ID, period.
The Pandas book was especially vulnerable because it was originally written expressly as a creationist book. The plaintiffs took advantage of this fact by trying to make the book a central issue in the case, and Judge Jones fell for it. The plaintiffs' subpoena of the book's publisher, Foundation for Thought and Ethics, even asked for such proprietary and confidential information as manuscripts and private communications connected with the Pandas book and other FTE publications. The plaintiffs' subpoena of FTE is described here.
Please note that the deleted comment was mine -- there has been no change in the no-censorship policy. LOL
NOTICE -- I just made a major addition to my original post: I added another item to my list, item #19. I also made two minor significant additions: (1) on item #18, I mentioned the amicus brief submitted by 85 scientists; and (2) I added a sentence to the end of item #3.
Whenever I make significant changes in my posts, I will leave notice in the comment section.
Larry Fafarman
Larry,
The Dover trial was about what was happening in the Dover school district.
The school board wanted a statement read out in childrens first lesson on evolution.
The statement claimed "evolution is only a theory. Other theories exist. Pandas and people is an alternative theory. The book is in the school library".
Reading that statement was obviously intended to give the impresion that the creationist book was on equal scientific footing to evolution.
As for ID in general. The decision of Judge Jones in no way bans ID. Just bans it from being taught in science class as an equaly scientificaly valid theory as evolution.
Considering ID has no theory as yet the decision should not have been necessary. Nobody is trying to get string theory taught in public schools yet.
"As I said, the case was supposed to be about ID and not about a particular book about ID. There are now several other books about ID, and more may written in the future."
Larry, what part of this is the book they were REFERRED TO IN THIS PARTICULAR CASE do you have so much trouble understanding?
Who cares if there are other books on ID; they aren't relevant TO THIS CASE. THIS CASE WAS ABOUT DOVER; IN DOVER THIS IS THE BOOK THEY WERE REFFERED TO.
It's foolish statements like these of yours that make people realize that you don't know what you're talking about.
To Stephen Elliott and Rilke's Granddaughter --
Let me repeat -- the case was supposed to be about ID, not about a particular book about ID. The opinion's official order and conclusion banned ID but said nothing about the book. The Pandas book was the only book that was thoroughly reviewed in the Dover opinion (Behe's Darwin's Black Box was barely touched upon), yet Judge Jones used his review of this book as a major factor in his decision to ban things that he never reviewed, including other ID books, book chapters on ID, and even non-ID challenges to evolution (e.g., the ones presented in this blog), which were implicitly banned by the prohibition against "disparaging" or "denigrating" evolution.
What if, say, a school district purchased some library copies of the book, "Finding Darwin's God: A Scientist's Search for Common Ground Between God and Evolution," by Kenneth Miller (ironically one of the plaintiffs' expert witnesses in the Dover trial), and then had a policy of telling the students about the book. There is the smoking gun -- the word "God" right in the book's title! Ban evolution from all the USA's public schools immediately, if not sooner! Call out the National Guard! Call out the Marines! Where is John Wayne now that we need him ?
OK, so far you Panda's Thumb people have attempted to counter only item #5 in my list -- what about the other 18 items ( I recently added a new item, making the total 19 ) ?
I'll be responding to all of them, individually. I think people are waiting for me to do so. Anyway, before I start, I had a couple of clarifications I would like resolved.
"(10) The Dover opinion quoted a normally-privileged attorney-client message that was received by the defendants and used this message to bash them, and gave no explanation as to how this message lost its privilege (pages 111-112). It was revealed in the trial testimony that the defendants gave the message to the plaintiffs ( I have no idea why -- the message was very damaging to the defendants )"
I want to make sure that we're looking at the same trial testimony, on the off-chance I missed an entry. Could you clarify where exactly you found where the defendants gave the message to the plaintiffs? The day and session would be sufficient, though a brief quote to pin it down would also help.
"(12) Jones appeared to take unfair advantage of the fact that the ousted original school board members and their legal representatives had no chance to have the decision reviewed by a higher court. Jones might have shown more restraint in his written opinion had there been a reasonable chance of appeal."
I can think of several ways in which you might think Judge Jones could have shown restraint, so I wanted to know exactly what you meant by restraint.
Thank you.
Larry,
The case was not suposed to be about ID.
The case was about the activities of a school board breaking the constitution.
Parents of affected children wanted to expose religious motivation in the boards meddling in a science class.
The fact that "ID as science" was brought up, was I believe due to the explicit request of both parties.
"Of Pandas and People" was the book children where directed to, so naturally it took center stage for much of the trial.
Any other book, publication, evidence etc. was allowed to be entered as evidence for ID. The ID suporters could have introduced any evidence they wished to back-up the "ID is science" claim.
You seem to be blaming the Judge for the inadequate job of the defence team.
Kevin wrote --
>>>I'll be responding to all of them, individually. I think people are waiting for me to do so.<<<
People are waiting for you to respond ? OK, if you say so.
>>>Could you clarify where exactly you found where the defendants gave the message to the plaintiffs?<<<
The location where the information appears in the trial testimony record is given on pages 111-112 of the opinion. I believe that the information was given during the testimony of Nilsen at 25:135-136 . This testimony shows that this message was the only attorney-client message that the defendants gave to the plaintiffs.
The Dover decision of course does not hinge on this message, but there were just some things about the message that seemed very fishy. It is just not normal to see a judicial opinion use an attorney-client message to bash the client that received it. Even if an attorney-client message has been inadvertently disclosed, it is sometimes possible to regain the message's privilege, and if Jones refused to restore this message's privilege, that could be another strike against him. The teachers arguably had a need to know, so showing them the message should not constitute voluntary disclosure. I think that attorney-client messages should just be treated like copyrights, with permission from the client being needed for each use of the message.
>>>I can think of several ways in which you might think Judge Jones could have shown restraint, so I wanted to know exactly what you meant by restraint.<<<
By "restraint" I meant "restraint." What else could I have meant? It means to refrain from acting in a way in which one is tempted to act.
Of course, this charge against Jones (item #12 on my list) is mere conjecture. It is impossible to enter his mind to determine what he was actually thinking. But I am assuming that he believed that he had freer rein because it was unlikely that the judgment would be appealed. Going down my list, it is possible to find any of a number of things that he might not have done or might have done differently had an appeal been a strong possibility. He knew that some things that he did or said would have gotten closer scrutiny by other judges if the case had been appealed. He knew that his opinion would likely not be reviewed in an appeal but would likey only be cited in other cases, and generally attorneys and judges who cite opinions in other cases do not conduct a thorough review of those opinions but merely cite excerpts from them. So that is why those of us who oppose the Dover opinion feel that it is important to give it such a bad reputation that no one would want to cite it.
Um. I did read the whole stinkin transcript as it was released and I particularly enjoyed Behe's testimony. It would seem to me that after getting thoroughly flogged as he was, the defense might have decided that Darwin's Black Box ought not be introduced as evidence. In fact, getting so utterly, ruinously trampled under the weight of their own inconsistencies and obfuscations, I imagine that the defense was more interested in removing than adding evidence. This would make sense since all the evidence was against them.
There are certainly legal or semi legal arguments to be made as to the value of the precident, the scope of the decision and the board members themselves but the thing that the Judge did was to assemble the evidence into a crushingly detailed and specific opinion which will in fact be precident by its virtue of existence. Any time an IDist tries to push their product as science or reality, all the lawyer has to do is refer to the appropriate section in Dover ruling and point out why it doesn't pass muster. It will be very difficult for a creationist/IDist to ever win a case in trial again because the opinion in Dover is so thoroughly detailed. So Larry, do you understand that ID ended up on trial? Do you understand that the best ID had to offer was the humorous uncomfortable blithering of the IDists on the stand? That was the best the DI could throw at it. They had to say they didn't because otherwise they would have been admitting that they have nothing. But don't you think if they had any ammo they would have used it? Have you read behe's testimony?
I have told people that I am going to respond. Some have told me they look forward to my responses. A little hubris on my part? Perhaps.
"Going down my list, it is possible to find any of a number of things that he might not have done or might have done differently had an appeal been a strong possibility. He knew that some things that he did or said would have gotten closer scrutiny by other judges if the case had been appealed."
Could you be more specific? What things did he say that you felt he might have shown some restraint on? I don't need quotes, just general categories. Was the opinion too long? Did he use too many footnotes? Did he use too many big words? Yes, I'm giving ridiculous examples, but I'm trying not to lead you - I want your objections to be your own. It's not meant to be an insult to your intelligence.
Thank you for the clarification on item 10. I thought that was the case, but I wanted to verify firsthand that you hadn't obtained information I had missed. This is the portion of the transcript in question, correct?
"And let me represent to you that this is the only legal advice document that's been produced to plaintiffs in this litigation. This is a memo from Steven Russell, the school district solicitor. Correct?"
W. Kevin Vicklund said...
>>>Could you be more specific? What things did he say that you felt he might have shown some restraint on? <<<
These new establishment clause lawsuits against challenges to evolution -- particularly the Kitzmiller v. Dover case and The Selman v. Cobb County evolution-disclaimer textbook-sticker case -- are actually breaking new legal ground because the targets of these suits are not obvious endorsements of religion -- there is little or no direct mention of anything religious and there are no religious symbols. Any connections to religion are mostly in people's minds, and a court might rule that that is not sufficient grounds to declare something to be a government endorsement of religion -- for example, an appeals court is apparently leaning towards reversing the Selman decision's ban on the textbook stickers. The courts are very unpredictable -- who could have imagined that the Supreme Court would have approved a public display of the Ten Commandments in one case and at the same time disapproved it in another ? So I think that had an appeal been likely, then Judge Jones, to avoid the possible embarrassment of being wholly or partly overruled on such a high-profile case as the Dover case, might have played it safe by ruling on the narrowest grounds possible -- e.g., just ruling against the defendants on the basis of their religious motivations. I think that a lot of people thought that he might do that. As I said, he could have ruled that the defendants could not possibly have had a valid secular purpose for the ID policy because they did not even understand the concepts of ID or irreducible complexity.
I think that if an appeal had been likely, Jones would not have boasted that he hoped that his decision and opinion would be the last word concerning the scientific merits of ID (see item #3) -- it would have sounded like he was trying to steal thunder from the appeals court and maybe also the Supreme Court. Even without an appeal, the statement sounds boastful enough. And maybe he would have been more careful about saying things like his statement that the results of one independent analysis "can likely be predicted" by the results of another independent analysis. I don't know -- I am not Judge Jones and I don't know how he thinks.
BTW, I took another look at that statement in item #3, and I just observed that Jones said that one of his reasons for ruling on whether ID is science was to try to save time and expense in possible future cases involving the same question. But the goal of saving time and expense in possible future cases is not a legally valid reason for ruling on an issue.
Some of the items in my list concern things that Judge Jones did before the election and he could not have foreseen the election's results because the election was rather close, and hence for those items I cannot argue that a possible reason for an alleged lack of restraint was that he knew that an appeal was unlikely.
>>> This is the portion of the transcript in question, correct?
"And let me represent to you that this is the only legal advice document that's been produced to plaintiffs in this litigation......" <<<
That is correct.
In regard to your question about the html tag codes -- a caption over the comment entry window says that only "some" of the html tags can be used. I have found that blockquote and some other html tags don't work at all or seem to work only part of the time. The blog service I am using is a little mickey-mouse but it is free, so I am not going to look a gift horse in the mouth. I think it is a popular blog service -- its logo is a red box with a white "B" followed by the word "Blogger."
BWE wrote (April 21, 2006 10:05:42 AM ) ---
>>>>>>
Any time an IDist tries to push their product as science or reality, all the lawyer has to do is refer to the appropriate section in Dover ruling and point out why it doesn't pass muster. It will be very difficult for a creationist/IDist to ever win a case in trial again because the opinion in Dover is so thoroughly detailed.
>>>>>>
I think that you have a grossly overoptimistic view of the future precedential importance of the Dover opinion. It is just an unappealed opinion of a single federal district-court judge. A few years ago, the 9th circuit federal court of appeals, the largest federal circuit (not counting the Federal circuit based in Washington, DC.), had a rule prohibiting the citation of any federal district-court opinion in any court of the 9th circuit -- I don't know if this rule is still in effect. It is true that McLean v. Arkansas Board of Education -- which was also an unappealed federal district-court decision -- has been cited often in establishment clause cases concerning evolution in the public schools, but I think such citation is a bad idea. A district-court opinion is subject to the prejudices, whims, and eccentricities of just a single judge.
Stephen Elliott wrote ( April 21, 2006 8:06:10 AM ) --
>>>The case was not suposed to be about ID.<<<
So what was it supposed to be about, then? School prayer? Ten Commandments displays? Nativity scenes? Santa Claus?
>>>The fact that "ID as science" was brought up, was I believe due to the explicit request of both parties.<<<
Whether to rule on it was still Judge Jones decision. There is no law or court rule requiring a judge to rule on something just because all parties want a ruling.
There was a recent case of a good-looking female pedophile teacher in Florida, and all those involved in the case except the judge were in favor of a plea bargain that had already been approved in another county. So here was a case where the judge ruled against the wishes of everyone else involved. The prosecutor ended it by just dropping the charges.
A judge is not required to continue a judicial analysis after achieving firm grounds for a decision -- in fact, it is a bad idea to do so. Suppose, for example, that the former school board members had kept their seats and had to decide whether to appeal. Suppose hypothetically that they thought that they had no chance of winning on the issue of their religious motivations but that they had a good or fair chance of winning on the issue of ID as science, but because of the former issue, they decided to not appeal. Hence, a possibly bad ruling on the issue of ID as science would have been allowed to stand and become bad precedent (albeit weak precedent because it was just a district-court ruling ).
Judge Jones gave three reasons for ruling on the question of whether ID is science: (1) the ruling was a necessary part of the "endorsement test," (2) the plaintiffs asked him to, and (3) he hoped to save time and money in possible future lawsuits. Reasons #2 and #3 are not legally valid reasons, and reason #1 was wrong for two reasons: (1) an endorsement test was not necessary in this case, and (2) ruling on whether ID is science was not necessary for doing an endorsement test in this case.
Chief Justice John "Ump" Roberts loves baseball analogies, so here are two baseball analogies concerning the question of whether a judge should continue a judicial analysis after reaching firm grounds for a decision: (1) should the World Series continue after one team has won four games? and (2) must a player who flies out also be forced out at first and tagged out too ?
I recommend the article, "Is Judge Jones an activist judge?"
<<<<<<
"Of Pandas and People" was the book children where directed to, so naturally it took center stage for much of the trial.
<<<<<<
The Dover school board could have chosen a different book. Of Pandas and People just happened to be the book that they chose. Even the book's publisher, Foundation for Thought and Ethics, was surprised when the book was made a central issue in the case.
<<<<<<
Any other book, publication, evidence etc. was allowed to be entered as evidence for ID. The ID suporters could have introduced any evidence they wished to back-up the "ID is science" claim.
<<<<<
At least one other book, "Darwin's Black Box," by Dover expert witness Michael Behe, was introduced into the case, and there were expert reports and expert testimony for the defendants. But this does not excuse making the Pandas book a central issue in the case.
Larry,
The statement read to kids at Dover explicitely cited Pandas as a source of more information about ID. They made it the definitive reference. What else was Jones supposed to use to define ID other than the very text which the school board pointed students to and what justification would he have in using a different reference?
That said, I do agree that the book was what was on trial (as well as the motivation of the board) and the book's creation science pedigree doomed it. The ID movement needs to standardize around a rigorously secular text for school boards to choose. Unfortunate as it may seem the text needs to be written and edited with much participation from the kind of legal professionals who would be involved in disputes like Kitzmiller.
However, Kitzmiller isn't really the most egregious case. The Cobb County case is the one I'm watching with greater interest as this one didn't mention any alternative theories to evolution it merely informed students that evolution was a theory, not a fact, and should be carefully studied and critically considered. The federal district judge, Clarence Cooper, ruled the sticker was an unconstitutional establishment of religion. This case IS under review and I'm anxiously awaiting the result. If evolution can't even be criticized without violating the establishment clause then we have a problem that might inspire the kind and amount of public outrage that will lead to a constitutional amendment to fix it.
Evolution is not a theory; it is an undeniable reality. Darwinism is not a theory; it is a failed hypothesis. So is Lamarckism. The Prescribed Evolutionary Hypothesis is in complete accord with everything that we know from the past and everything that is emerging from the world's experimental laboratories. As I have said many times:
"A past evolution is undeniable. A present evolution is undemonstrable."
Like ontogeny, phylogeny has also proved to be irreversible, autoregulated, self-limiting and self-terminating.
One of these centuries that will be accepted as reality. Only then will evolution rise to the level of having a theory. Theories are, after all, verified hypotheses. That is all they ever were. Why continue to abuse a perfectly good English word?
"Meine Zeit wird schon kommen!"
Gregor Mendel
P.S. Since I found you here DaveScot, don't forget to reinstate my papers, this time in chronolgical order please. Do as you are told for a change, or don't. It really doesn't matter much as you are through no matter what you do now. Your credibility is zero.
The thing is that they won't need to cite it as a legal opinion. They will only need to cite it as a collection of evidence that demonstrates conclusively that every single possible witness, hypothosis, or bit of working science without a single minute exception that the whole entire world of ID supporters could muster was a retelling of creationism and had absolutely no testable hypotheses available to it (or at least no testable hypotheses that hadn't been employed as evidence denying ID). So, it's not that it's a legal opinion, it's that it's a clearinghouse of information.
Read bumbling behe's testimony. Then, after you get over whatever emotional reaction you have to his inability to understand what he himself was saying, read it again. It will make your head spin.
As a famous panther once said, "May I join the winning team?"
What is most interesting to me is why someone who is as ignorant of law as you are, Larry, wants to trumpet that ignorance throughout the world?
DaveScot wrote ( Sunday, April 23, 2006 9:22:51 AM ) ---
>>>What else was Jones supposed to use to define ID other than the very text which the school board pointed students to and what justification would he have in using a different reference?<<<
But the Pandas book was a major factor in Jones' decision to ban things that he never reviewed, e.g., other books about ID and even non-ID challenges to evolution ( see my comment of Thursday, April 20, 2006 10:56:51 PM ). Despite the book's centrality to the decision, the book is never even mentioned in the Dover opinion's official order and conclusion. And do you think that the ACLU et al. want the Dover decision to be viewed as just a ban on the Pandas book ?
What Jones did is comparable to banning evolution just because some school district chose to recommend Kenneth Miller's "Finding Darwin's God: A Scientist's Search for Common Ground Between God and Evolution" to the students.
>>>That said, I do agree that the book was what was on trial<<<
Then I hope that you agree that Judge Jones erred by denying the publisher's motion for intervenor status (see item #6 in my original post). This denial is not mentioned in the Dover opinion and hence would not be known by those reviewing just the opinion. Considering that a good part of the opinion is essentially a negative book review of Pandas, readers of the opinion might be at least a little surprised by the denial of the publisher's motion to intervene.
>>>The ID movement needs to standardize around a rigorously secular text for school boards to choose.<<<
But according to Judge Jones and supporters of his Dover decision, choosing another book should not do any good because his Dover opinion is supposed to be the last word on ID.
>>>However, Kitzmiller isn't really the most egregious case. The Cobb County case is the one I'm watching with greater interest as this one didn't mention any alternative theories to evolution<<<
Oral hearings showed that the appeals court is leaning towards reversing the Selman v. Cobb County decision. See
http://www.nsba.org/site/doc_cosa.asp?TRACKID=&VID=50&CID=439&DID=37549
-- and --
http://www.law.com/jsp/article.jsp?id=1134641111572
-
The Kitzmiller and Cobb County decisions are actually both on shaky legal grounds, because both decisions represent perhaps the first times that things that made little or no mention of anything religious and that contained no religious symbols were nonetheless held to be government endorsements of religion.
Larry
Since Jones relied so heavily on Pandas I don't think his ruling will carry any weight in any case where a different ID reference is used.
He only had two choices to try to rule ID as non-science: try Panda's and get a narrow ruling that might survive review or try a generalized statement about patterns in nature that exhibit mathematically detectable hallmarks of design and get an extremely broad ruling that would probably never survive a review.
In patent work we refer to this as "scope" in the claims. You want the broadest possible protection for your patent so you try to make it cover everything from silicon chips to the kitchen sink. Broad claims are easily defeated. Fortunately in patents you can make many claims in the same patent so you start out with broad ones and work your way down to narrower and narrower claims until you're finally protecting something so specific no one can possibly fight it but it becomes easy to work around it by doing something slightly different. Defeating a broad claim in patent court doesn't negate the narrower claims.
It doesn't work that way in Jones' case. He can't start out his ruling by decreeing that all theories of evolution other than NeoDarwinism are religion and then move on down the line to narrower and narrower definitions of what constitutes a religious theory. No. He had to drive a stake in the ground and he drove the stake right through the heart of Pandas. All the next school has to do is modify their definition of ID so it doesn't match what Jones ruled on and Jones as a precedent becomes hardly worth mentioning.
This is why the publisher of Pandas said in their plea to be made a party to the case "If the school board loses we won't be able to sell this book to any schools anywhere and will suffer significant financial damage as a result. Of Pandas and People will become radioactive." They were quite right. Any school that uses Panda's and People will have an uphill battle if challenged because of how thoroughly Jones tore it apart.
DaveScot wrote ( Sunday, April 23, 2006 11:28:50 PM ) --
>>>Since Jones relied so heavily on Pandas I don't think his ruling will carry any weight in any case where a different ID reference is used. <<<
The Dover decision has already intimidated the Ohio state board of education into deleting an evolution lesson plan that did not even contain irreducible complexity or other ID concepts. The maximum possible influence of the Dover decision will be limited by the fact that it is just an unappealed district-court opinion of a single judge, but I have never seen such importance attached to a district-court opinion -- many Darwinists actually think that they have already won the battle in the courts. Efforts to discredit the decision may also limit the decision's influence.
>>>He only had two choices to try to rule ID as non-science<<<
He did not have to rule on the scientific merits of ID or irreducible complexity at all.
>>>This is why the publisher of Pandas said in their plea to be made a party to the case "If the school board loses we won't be able to sell this book to any schools anywhere and will suffer significant financial damage as a result."<<<
On the one hand, the Dover decision severely damaged prospects for selling the book in one of the book's largest potential markets, public schools, but on the other hand the decision could ironically increase sales in other markets by arousing curiosity about the book.
Judge Jones' denial of the publisher's motion for intervenor status was based on the following erroneous rulings --
(1) -- the interests of the publisher, Foundation for Thought and Ethics (FTE), would be adequately defended by the original defendants. The hollowness of this ruling became obvious when the new school board decided to not appeal; as an intervenor, FTE would have had a right to file an independent appeal. The Dover school board can put the Dover decision behind it and move on, but FTE cannot.
(2) -- FTE's motion to intervene was "untimely." But before FTE received a subpoena from the plaintiffs, FTE was understandably unaware that the book would be central to the case, because the plaintiffs' preparations for the trial were presumably conducted in secret. The motion to intervene was filed about a month after the subpoena was received and a whopping four months before the start of the trial. Granting intervenor status to FTE would not have delayed the trial by introducing new issues, because the book was already central to the case. Also, FTE could have been admitted as an intervenor under FRCP Rule 24(a), which unlike FRCP Rule 24(b) does not specifically mention possible delay of a trial as a factor to be used in judging the timeliness of a motion to intervene.
(3) -- FTE's interests in the case were "purely economic" and "uncertain." But nowhere does FRCP Rule 24 say that these are grounds for denying intervention. By referring to "an interest relating to the property or transaction which is the subject of the action," FRCP Rule 24(a) actually specifically indicates that economic interests are supporting grounds for granting intervention. And FTE's interests were certainly far from "uncertain," because the book was directly targeted by the plaintiffs, which was unlike the indirect involvements of the would-be intervenors whose motions to intervene were denied in the precedents cited by Judge Jones.
Another example of a badly flawed procedural decision of Judge Jones was his rejection of one of DI's amicus briefs (item #7 in my opening post). What a lousy judge.
It is hard for the person who is the uninformed party in a dispute to understand why the other side seems to discount them so completely.
Judge Jones heard the testimony. The best ID had to offer. It is hard to call him an activist judge in most realms. a quick review of his decisions leads one to call him fairly conservative if perhaps a little business friendly. These problems with the decision all seem to revolve around your idea that ID is, in fact, science. Is that what you believe? Is ID science?
BWE wrote ( Monday, April 24, 2006 8:50:30 PM ) --
>>>These problems with the decision all seem to revolve around your idea that ID is, in fact, science. <<<
Wrong. My opening post never addresses the issue of whether ID is science.
>>>Is that what you believe? Is ID science?<<<
Some answers to the question of whether ID is science are presented in the Discovery Institute's book "Traipsing into Evolution" and online in "Dover in Review" by the DI's John West.
I plan to soon post my thoughts about ID on this blog. I will either create a new opening post or post my thoughts on the thread that I established here for discussing ID and irreducible complexity.
HEY DAVE TARD SHUT YOUR FAT PIE HOLE. If we want to read your nonsense we'll go to uncommon nonsense and say "fill 'er up!"
Until then SHUT YOUR FAT PIE HOLE!
Thank you.
HTML tags...Leave a single character out of an HTML tag and you render it useless. This proves HTML tags are irreducibly complex!
Schwing!
This proves biologists are not qualified to speculate on the subject of biology or evolution, only HTML coders are qualified to understand biology. -ds
Don't tell Spravid Dinger to shut up. Quite the contrary, encourage the jerk to continue to expose himself for what he is, the biggest cowardly hypocrit in all of cyberspace.
I love it so!
> I plan to soon post my thoughts about ID on this blog. <
Why should these thoughts be taken seriously? You have shown that you rarely understand the subjects on which you attempt to comment. I am curious, other than being an unemployed (or unemployable) engineer, what is your background?
I see that you say you are in California. Those engineers offering their services to the public have to be registered after an extensive set of exams and other requirements. I see only one Fafarman listed on the state site and it does not seem to be you. From your total confusion over simple legal issues, you clearly are not a lawyer. Your grammar and spelling seem to be above average. Are you a kindergarten teacher?
VoiceInWilderness said --
>>>>>
I see that you say you are in California. Those engineers offering their services to the public have to be registered after an extensive set of exams and other requirements. I see only one Fafarman listed on the state site and it does not seem to be you.
>>>>>
Most engineers who work in industry do not have to be registered, and in fact most are not.
To find my registration, go to the following webpage and enter either my true first and last names, Lawrence (not Larry) and Fafarman, or my registration number, 22022, and then hit the "find" button. I am registered in the mechanical branch ( most states do not register by branch ). I am listed as "delinquent" because I am behind in my paying my fees. My brother is also a registered engineer, and he was probably the one you saw before.
http://www2.dca.ca.gov/pls/wllpub/wllqryna$lcev2.startup?p_qte_code=ENG&p_qte_pgm_code=7500
>>>From your total confusion over simple legal issues, you clearly are not a lawyer.<<<
As I said, if you don't like the legal arguments that I have made here, then why don't you try to rebut them ? Would an attorney say in court the same kind of thing that you are saying here, that he does not have to answer opposing arguments because the opposing attorney has not had a high rate of success ? Please -- PUT UP OR SHUT UP.
I am really tiring of you, VoiceInWilderness. You are just a heckler who has made almost no worthwhile contribution to the discussions here. Pretty soon I will stop answering you and then you will probably get no more responses to your senseless drivel.
> I am registered in the mechanical branch <
Amazing. You do seem to be a delinquent engineer. If you were retired, you could have selected retired status and not paid fees but since you are obviously unemployed or unemployable, you can't afford them. Who gave you the computer? I am surprised that as an unemployed person you can afford one.
> most states do not register by branch <
Most do. As usual you don't know what you are talking about.
Perhaps you are employed but McDonald's does not require an engineering registration.
VoiceInWilderness said...
>>>>Amazing. You do seem to be a delinquent engineer.<<<<<
VoiceInWilderness, my non-payment of my registration fees is my business.
You asked me to prove that I am a real engineer, which I did, but that did not satisfy you. You cannot be satisfied.
From now on I am just going to ignore your comments.
> my non-payment of my registration fees is my business. <
Why don't you sue them for requiring the fees of unemployed, unemployable ex-engineers?
> You asked me to prove that I am a real engineer, which I did <
You proved that you were once an engineer but can no longer afford the fees since you are unemployed.
Did your brain surgery cause you to lose your job? It looks like there is an opportunity for your first successful lawsuit here.
I'm sorry. I was on drugs when I wrote those other comments. I'm getting help now.
I'm sorry. I was on drugs when I wrote those other comments. I'm getting help now.
Ignore these posts that give my name as the author. They are actually posted by the judges that were against me.
Larry Fafarman said...
> This post has been removed by the author. <
When I said that I wouldn't censor anyone, that didn't mean me.
Please excuse me for arguing with myself. I'm getting help now. It is difficult since I lost my engineering joy. My welfare checks barely pay for the therapist.
Larry,
Projection again? Who is the impersonator? You are the one who is claiming to be an engineer rather than an unemployed bum. How do you get electric power in the furniture box you must live in or do you depend on the charity of relatives?
Just an FYI. Judge Jones made the cover of Time as one of the Top 100 influential people. Appropriately, he made it in the "Scientists and Thinkers" category.
W. Kevin Vicklund said...
>>>>Just an FYI. Judge Jones made the cover of Time as one of the Top 100 influential people. Appropriately, he made it in the "Scientists and Thinkers" category.<<<<
Being on the cover of Time magazine is not necessarily a great honor -- Time's people of the year have included Adolf Hitler, Josef Stalin, and Ayatollah Khomeini.
Actually, Judge Jones' selection as one of the Top 100 influential people is an argument in favor of teaching iD to students -- his selection shows that ID is a big controversy and therefore something that students should be familiar with.
Jones is certainly not a scientist, and though I will generously concede that he might be a "thinker," he is certainly not a good one.
Anyway, Kevin, you said some time ago that you were going to respond to all of my criticisms of Judge Jones' rulings, and so far you haven't directly responded to any of them. You have only asked me to make some clarifications.
I had to help friends move last week and the preceding weekend, and then I went to a training seminar late last week (which turned out to be a glorified sales pitch), then was out of the country visiting my wife over the weekend (she's doing her doctoral research). That's why I've been relatively quiet for the last week. I'm about halfway through item one - I'm trying to go sequentially.
And now the apartment complex is doing preventive maintenance, which means I've gotta recover from 8 months of reliving the bachelor life...
PS I'm way behind on PT too, so don't feel neglected...
How can anyone be "way behind at PT." They haven't said anything sensible in months. All they do is squat, cackle and congratulate one another. What a bunch of losers.
I love it so!
JohnADavison said...
>>>>>How can anyone be "way behind at PT." They haven't said anything sensible in months. All they do is squat, cackle and congratulate one another. What a bunch of losers.<<<<<
This is true, JAD. They are completely intolerant of opinions that differ from theirs. Instead of answering a differing opinion, the commenters there will often just respond with insults and ad hominem attacks. I was frequently banned and deleted there because of my views (the PT bloggers will of course deny it). I long ago realized that Panda's Thumb is mainly a place where Darwinists go to scratch each other's backs.
Yes Larry and then the same creeps show up here to denigrate anyone and everyone who ever took exception to their mindless ideology. They, like Spravid Dinger will gravitate to any blog that will permit them, spewing their venom wherever they can. They need that don't you know. It is wonderful!
The best way to deal with trash like that is to laugh at them. I have been doing it for a long time. It is great sport.
I love it so!
I don't know if it has been announced here yet, but the Kitzmiller v. Dover decision has been published. The pincite:
Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005)
> A judge is not required to continue a judicial analysis after achieving firm grounds for a decision -- in fact, it is a bad idea to do so.<
So you understand why all of your mindless crap was thrown out of court?
W. Kevin Vicklund said...
>>>>>the Kitzmiller v. Dover decision has been published. The pincite:
Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005)<<<<
I thought that maybe after all the negative reviews of the Dover opinion, Judge Jones might have decided not to publish it. However, that would probably have meant that it could not be cited in some federal circuits because the pending national rule permitting citation of unpublished opinions ( I presume that this rule applies to district-court opinions as well as appellate opinions ) will apply only to opinions released on or after next Jan. 1.
I wonder if the published version corrects that error in the original -- the mis-citation of Edwards v. Aguillard as Edwards v. Arkansas. LOL
> VIW, for starters, you look very stupid for pretending that you know things about my lawsuits that you do not. <
Your lawsuits are all public material. Most of what I found was on the net and could be found with a Google search. Since you protested so much it led me to check the cases on Westlaw. Any reasonable person who does this will quickly learn more about your cases than you obviously know yourself.
As for public material, your address can be found on the Board of Registration for Engineers and Land Surveyors site. Thank you for giving us this hint. You are shown as an ex-engineer whose address, according to the Assessor's website, is owned by your mother. She probably is paying for your Internet service but that information is not as readily available.
If it weren't for you once being an engineer, I would have guessed that you were a teenager from your posts. Now it looks like you are older physically but in a state of arrested mental development.
Your real situation can easily be found by someone with only a minor amount of effort.
> you cannot even attempt to rebut any of the arguments that I have made in this blog ? <
You are constantly being rebutted by everyone but it is clear that you can't understand their arguments any more than you understand the issues on which you first took a position.
You repeat yourself endlessly and then accuse your adversaries of doing the same.
VoiceInWilderness said...
>>>>>>
Your lawsuits are all public material. Most of what I found was on the net and could be found with a Google search.
As for public material, your address can be found on the Board of Registration for Engineers and Land Surveyors site. Thank you for giving us this hint.
Your real situation can easily be found by someone with only a minor amount of effort.
>>>>>>
VIW, you are unable to say anything intelligent, so all you do is gossip. You are one of the biggest pieces of shit that it has ever been my displeasure to encounter on the Internet.
If it were not for my no-censorship policy, you would not bother to post comments here.
> all you do is gossip. <
You seemed to have started this with your inaccurate self description. I can't stand it when someone pretends to be something that they are not.
You pretend to have something meaningful to say, that is fraud enough.
> You are one of the biggest pieces of shit that it has ever been my displeasure to encounter on the Internet. <
Considering the source, I hold that to be high praise.
You have admitted that everything that I have said about you is true after first denying it of course
>>>(1) For perhaps only the second time in American history (the Selman v. Cobb County evolution-disclaimer textbook sticker case was possibly the first), a judge ruled that something — irreducible complexity in this case — that makes no mention of anything related to religion and that contains no religious symbols constitutes a government endorsement of religion. Whether or not irreducible complexity is bogus science is irrelevant, because there is no constitutional separation of bogus science and state.<<<
Well, I would say that there are at least a few cases where a judge ruled that something making no mention of anything related to religion and that contains no religious symbols constituted a government endorsement of religion. The first that springs to mind is Epperson v. Arkansas, 393 U.S. 97 (1968). The law struck down made no mention of religion, creationism, or God. Rather, the law in question is as follows:
>>>§ 80-1627. -- Doctrine of ascent or descent of man from lower order of animals prohibited. -- It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational institutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals.
§ 80-1628. -- Teaching doctrine or adopting textbook mentioning doctrine -- Penalties -- Positions to be vacated. -- Any teacher or other instructor or textbook commissioner who is found guilty of violation of this act by teaching the theory or doctrine mentioned in section 1 hereof, or by using, or adopting any such textbooks in any such educational institution shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding five hundred dollars, and upon conviction shall vacate the position thus held in any educational institutions of the character above mentioned or any commission of which he may be a member.<<<
The language used clearly indicates that it is the same type of analysis used in what has become the endorsement test. The opinion quotes Abington School District v. Schempp, 374 U.S. 222 (1963):
>>>[W]hat are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.<<<
These are clearly the precursors to the modern definition of the endorsement test - that is, the purpose and effect portions of the Lemon test or the modification advanced by Justice O'Connor. For the purpose of this argument, I am assuming that you are excluding the entanglement test. (The Lemon decision combined two lines of judicial tests of the Establishment Clause - the two endorsement tests, from the line leading to Abington; and the entanglement test, from the line leading to Walz v. Tax Commission, 397 US 674 (1970). Inclusion of the entanglement test would add more cases not mentioning religion, including Lemon itself.
Also, the Epperson opinion states that leaving out explicit references to religion doesn’t prevent the court from determining that the law or activity in question has underlying religious motivations:
>>>Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee's reference to "the story of the Divine Creation of man" as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, "denied" the divine creation of man.<<<
The Supreme Court has also ruled that, especially in the case of children, violations of civil rights are not to be tolerated, whether openly or evasively through contrivance or genuine ignorance on the part of the legislature. "We also take note of the Court's warning that "the constitutional rights of children . . . can neither be nullified openly and directly by [the] state . . . nor nullified indirectly by [it] through evasive schemes . . . whether attempted 'ingeniously or ingenuously.'" Gilmore v. City of Montgomery, 417 U.S. 556, 568 (1974) (quoting Cooper v. Aaron, 358 U.S. 1, 17 (1958))." - Adler v. Duval County School Board, 250 F.3d (11th Cir 2001)
I read many other court decisions that addressed facets of these issues (~50), many of them originating in non-Establishment Clause cases, but later applied to the EC. I will spare the reader a recitation of these quotes in the interest of brevity and to prevent carpal tunnel syndrome on my part. For those interested, start at the various evolution cases and follow the citations to other cases.
The fact is, the courts have consistently determined that opposition to the teaching of evolution is a religious concept because certain religious sects hold it as anathema to their dogma. This opposition may be in the form of outright bans, or by attempts to discredit evolution through disclaimers or alternative theories with no scientific basis. "The Court found that there can be no legitimate state interest in protecting particular religions from scientific views "distasteful to them," and concluded "that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma,"" - Edwards, quoting Epperson (citations omitted). Therefore, we have a known religious purpose or effect that advances religion.
Bogus science has no legitimate secular purpose, and its primary effect is to discredit legitimate science. Therefore, if no purpose other than promotion of bogus science is given when a religious purpose is known to exist, the law fails the purpose prong. Likewise, if its primary effect is merely to discredit a theory when discrediting that theory advances religion, it fails the effect prong.
Of course, the truth is that irreducible complexity is merely a restatement of a famous religious argument: What good is half an eye?
. Kevin Vicklund said ( 6/02/2006 10:23:42 PM ) --
>>>>Well, I would say that there are at least a few cases where a judge ruled that something making no mention of anything related to religion and that contains no religious symbols constituted a government endorsement of religion. The first that springs to mind is Epperson v. Arkansas, 393 U.S. 97 (1968).<<<<<
OK, technically speaking, you are correct. But Epperson did not actually ban anything -- Epperson actually unbanned something, the teaching of evolution theory in the public schools. So what I should have said was that Kitzmiller and Selman could be the first times that things that are not overtly religious were banned as alleged endorsements of religion (with the possible exception of Kitzmiller, because the term "intelligent design" implies the existence of a supernatural "designer").
>>>>>Also, the Epperson opinion states that leaving out explicit references to religion doesn’t prevent the court from determining that the law or activity in question has underlying religious motivations:<<<<<
The Selman opinion says in the purpose prong analysis,
Unlike the disclaimer in the Freiler case, the Sticker in this case does not contain a reference to religion in general, any particular religion, or any religious theory. This weighs heavily in favor of upholding the Sticker as constitutional. See Adler, 206 F.3d at 1083 ("For the most part, statutes which the Supreme Court has invalidated for lack of secular purpose have openly favored religion or demonstrated a religious purpose on their face."). (emphasis added) -- from http://www.talkorigins.org/faqs/cobb/selman-v-cobb.html
>>>>These are clearly the precursors to the modern definition of the endorsement test - that is, the purpose and effect portions of the Lemon test or the modification advanced by Justice O'Connor.<<<<<<
The endorsement test is sometimes considered a refinement of the Lemon test and sometimes treated as a separate test. The endorsement test was separate in Kitzmiller but not in Selman. Even the Lemon test itself is often regarded as optional -- see "Aptly named 'Lemon test' sucks" on this blog.
>>>>>For the purpose of this argument, I am assuming that you are excluding the entanglement test.<<<<<
The "entanglement test," which is the original 3rd prong of the Lemon test, is now often combined with the "effect" prong. Both the Kitzmiller and the Selman decisions used only the first two prongs of the Lemon test -- "purpose" and "effect."
The appeals court said of the district court in the Selman remand, "The court collapsed the third prong into the second, apparently believing that any action with a forbidden religious effect also constituted excessive entanglement." (page 20) -- from http://www.ca11.uscourts.gov/opinions/ops/200510341.pdf
Also, Justice O'Connor, in a concurring opinion in Lynch v. Donnelly, 465 U.S. 668, the case where she proposed the "endorsement test," said that the entanglement prong should be limited to institutional entanglement, i.e., entanglement with religious institutions such as churches, and no such entanglement existed in any of the cases involving evolution in the public schools --
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive [p688] entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. E.g., Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. See generally Abington School District v. Schempp, 374 U.S. 203 (1963)........The entanglement prong of the Lemon test is properly limited to institutional entanglement. -- from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0465_0668_ZC.html
>>>>>The fact is, the courts have consistently determined that opposition to the teaching of evolution is a religious concept because certain religious sects hold it as anathema to their dogma. This opposition may be in the form of outright bans, or by attempts to discredit evolution through disclaimers or alternative theories with no scientific basis.<<<<<<
The Supreme Court has never had a case dealing with an attempt "to dicredit evolution through disclaimers" -- Epperson v. Arkansas dealt with a ban on teaching evolution and Edwards v. Aguillard dealt with a state law requiring equal time for creation science. Freiler v. Tangipahoa Parish Board of Education, 185 F. 3d 337 (5th Cir 1999), cert. denied, 530 US 1251 (2000), an evolution disclaimer case, came within one vote of being granted rehearing en banc (i.e., by the full appeals court) and within one vote of being granted certiorari by the Supreme Court. In both cases, vehement dissenting opinions were written. In his dissenting opinion, Justice Scalia wryly noted, "At the outset, it is worth noting that the theory of evolution is the only theory actually taught in the Tangipahoa Parish schools." If Freiler had been overturned by the en banc appeals court, there would probably be no Selman decision today, and if Freiler had been overturned by the Supreme Court, there would certainly be no Selman decision today ( Kitzmiller is a little different because the disclaimer in the Dover school district came closer to being an endorsement of an alternative to evolution and because ID books were provided in the school library). Selman may very well be eventually reversed, because the appeals judges indicated in the oral hearings that they were leaning towards reversal. Overconfident Darwinists do not realize that they have been very lucky in the courts so far. For articles on this blog dealing with the Selman and Freiler cases, just enter those names in the search window in the top border of the blog.
>>>>>Bogus science has no legitimate secular purpose, and its primary effect is to discredit legitimate science. Therefore, if no purpose other than promotion of bogus science is given when a religious purpose is known to exist, the law fails the purpose prong. <<<<<
I never actually called ID "bogus science" -- I only meant that even if ID is bogus science, it could not be banned just on that basis, because there is no constitutional separation of bogus science and state. Astrology and alchemy are bogus sciences, but I doubt that the courts would try to stop public schools from teaching these subjects for the students' own information. Darwinists have a "contrived dualism" of their own (comparable to the contrived dualism of creationists, which says that Darwinism and creationism are the only two alternatives in the subject of species' origins): they say that if something does not have a scientific purpose, then it must have a religious purpose.
>>>>>Of course, the truth is that irreducible complexity is merely a restatement of a famous religious argument: What good is half an eye? <<<<<
Yes, but irreducible complexity has gotten a lot more sophisiticated -- it is now being studied in the fields of microbiology and biochemistry (sometimes called molecular biology). Also, there are challenges to evolution theory that are different from irreducible complexity and ID -- I have presented such challenges on this blog ( concerning co-evolution, chromosome counts, and the propagability of beneficial mutations in sexual reproduction).
BTW, I am still pissed off at you for what you have been doing to me on Panda's Thumb, but under my no-censorship policy, I am forced to accept and answer your comments here.
It's been a while but I've got a few more lined up, ready to go. The first is rather long, though the net two are much shorter.
>>>(2) It was not necessary to rule on the scientific merits of ID at all. Jones had the following other options: (i) ruling against the defendants solely on the basis of their religious motivations, or (ii) ruling that irreducible complexity is not religious because it does not mention anything related to religion. An additional reason for ruling on narrow grounds was that the original defendants could not appeal because they were voted off the school board. If the new school board -- consisting mostly of anti-ID members who had replaced former pro-ID members -- had rescinded the ID policy and offered a complete out-of-court settlement before the release of the decision, Jones would arguably have had grounds for declaring the case to be moot.<<<
This is wrong in so many ways, it took a while just to plan out the order in which to respond to the various sub-claims. In the end, I decided to just deal with them as close to the order Larry gave as possible, though I’m deferring the part aout mootness to a later rebuttal.
First, Judge Jones did not have the option to rule against the defendants solely on their religious motivations. He was restricted by 3rd Circuit Court precedence on the matter. Judge Jones spends Part D of the decision (pages 9-14) to the consideration of which tests to apply. He first noted that the Lemon test applied, as stipulated by the parties, then held that the endorsement test also applied:
After a searching review of Supreme Court and Third Circuit Court of Appeals precedent, it is apparent to this Court that both the endorsement test and the Lemon test should be employed in this case to analyze the constitutionality of the ID Policy under the Establishment Clause, for the reasons that follow. page 10
The next paragraph, which runs to page 12, lists the various Supreme Court decisions that applied the endorsement test, with special attention to relevance to the Dover case. He followed that by noting that the two main Supreme Court cases on creationism statutes predated the endorsement test, and that the endorsement test “is most closely associated with Lemon’s “effect” prong, rather than the “purpose” prong.” The next paragraph, which crosses into page 13, concludes that by Supreme Court precedent, he must utilize the endorsement test. He follows with a couple of recent 3rd Circuit decisions that utilized the endorsement test in school policy cases.
It is clear that, at the very least, Judge Jones faced the possibility that he would have to utilize the endorsement test. Of course, he also faced the possibility of the first two Lemon tests. The order in which he addressed these three tests could make a difference, since they are disjunctive – that is, a failure by the defense on any one of the tests results in a ruling in favor of the plaintiffs. Therefore, it wouldn’t be necessary to examine the second and third tests if the defense failed the first. (That said, there are a number of good reasons to examine all tests – more later) So, how do we decide which test to administer first?
Like any conservative, non-activist judge, Judge Jones turned to precedent – in this case, the recent precedent of the 3rd Circuit Court. In Freethought Society v. Chester County, 334 F.3d 247, 261 (3d Cir. 2003), Modrovich v. Allegheny County, 385 F.3d 401-413 (3d Cir. 2004), and Child Evangelism Fellowship v. Stafford Township Sch. Dist., 386 F.3d 530-535 (3d Cir. 2004), the Third Circuit used all of the tests. From page 14 of his decision, Judge Jones wrote,
The Third Circuit conducted the endorsement inquiry first and subsequently measured the challenged conduct against Lemon’s “purpose” and “effect” standards. with the following footnote: We do note that because of the evolving caselaw regarding which tests to apply, the “belts and suspenders” approach of utilizing both tests makes good sense. That said, it regrettably tasks us to make this narrative far longer than we would have preferred.
So there you have it. Judge Jones had no choice but to apply the endorsement test first, and in fact was forced to also apply both prongs of the Lemon test. The reason for ruling so widely is precisely because of the evolving status of the various Establishment Clause tests. If the first test is marginal, and the others come out negative (that is, no violation), that would be an indication that perhaps the policy wasn’t unconstitutional – but Larry’s argument wouldn’t allow us to find out, because we would have stopped at the first step. Additionally, this serves as a way of verifying whether the tests are truly applicable, especially the endorsement test – if the endorsement test shows a violation, at least one of the first two prongs of Lemon should also show a violation. Also, it should be noted that even Scalia has recognized that until the Lemon is overturned, the lower courts have no choice but to follow its precedent.
The only question remaining is whether the endorsement test can consider the religious motivation of the board members. Not surprisingly, the answer is a resounding “NO!” From the Modrovich opinion:
Thus, in applying the endorsement test, we do not examine the County’s motivations in displaying the Plaque, but consider the Plaque’s effect on the reasonable observer, determining whether the reasonable observer would perceive it as an endorsement of religion.
Therefore, Judge Jones was obligated by very clear precedence to rule first on the endorsement test, and could not consider the religious motivations in so doing.
Having demonstrated the vacuity of Larry’s first argument, we now turn to his second argument: “ruling that irreducible complexity is not religious because it does not mention anything related to religion”. Well, now, there’s a lot of misinformation contained in that seemingly simple phrase. First of all, did Judge Jones actually rule IC to be religious? Not directly. Rather, he ruled that it was not science, and that it suffered from the same logical flaws of contrived dualism (false dichotomy) that doomed creationism in the 80’s. That said, under existing precedent, IC does mention something related to religion – it mentions (or rather, it is a restatement of) an argument that the courts have previously determined to be religious in nature. Secondly, IC is only part of ID, and it was ID that was ruled to be religious. So even if IC isn’t ruled religious, it doesn’t hinder the finding that ID is religious. What’s really going on is that Larry is trying to insulate IC from the overall ruling with a “teach the controversy” strategy – which is something already anticipated and denounced by Judge Jones. The third piece of misinformation is the idea that something can’t be religious because it doesn’t mention anything related to religion. Since Larry moved the goalposts in his pathetic attempt to rebut my response to his Criticism #1, let’s expand our focus to civil rights in general. Can the courts rule a law racist even though it mentions nothing related to race? Sure they can – ever heard of Jim Crow laws? Sexist? Yep. I could go on down the list, but let’s go to the mirror of the current situation. If a policy was enacted that was aimed at denigrating religion, but was written in such a way that it mentioned nothing related to religion, shouldn’t the courts be allowed to determine that the policy was anti-religious and thus a violation of the First Amendment (assuming, of course, no legitimate secular reason for the policy existed)? Do we really want to allow such a gaping loophole where all the gains in civil rights could be nullified just by rewording an unconstitutional policy? Please don’t insult our intelligence, Larry.
Next, Larry tries to argue that the ruling should have been narrower on the grounds that the original board couldn’t appeal (note that a narrow ruling would by precedent only address the endorsement test and not religious motivations – not the outcome Larry is trying to set-up). First, it is terrible jurisprudence to alter rulings based on whether someone might appeal. The judge should always assume that no appeal will be made – any ruling ought to be able to stand on its own. The comprehensiveness should be based on what the case calls for, not how the judge thinks the losing party will react. Not only that, but Larry deliberately engages in more misinformation. He claims the old board members are the original defendants. This is false, and Larry knows it – we have told him this many times. The original defendants are the school district and the board in its official capacity as representatives of the school district. What is the school district? Legally, it is a group of taxpaying citizens. The board is elected to administer the district per the desires of the citizens. The board is given the power to make decisions and represent the district in legal disputes - without having to be defendants or plaintiffs if they are acting in their official capacity. Since the board was only named defendant in its official capacity, the board members are not defendants. The real defendants are the taxpayers, and they chose not to appeal by electing a different set of representatives – they didn’t get the right stripped away from them.
Of course, jurisprudence is also well served if a judge keeps in mind that his decision may be appealed. This, too, argues in favor of a comprehensive ruling. That is because the appeals court, even when they consider a case de novo, generally defers to the original court on findings of fact. Therefore, the more comprehensive the original ruling, the better equipped the appeals court is to determine the proper outcome, especially if they overturn part of the original decision. A comprehensive ruling thus saves judicial resources (both in time and money) by significantly reducing the risk that a case be remanded to determine an issue not explored in the ruling, and by covering all the issues, it ensures that a just decision is reached. Just, speedy, and inexpensive decisions are favored by the Federal Rules of Civil Procedure:
Rule 1. - Scope and Purpose of Rules
These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
The type of test being applied can also make a difference in the comprehensiveness of the ruling. A conjunctive test, where the defendant fails only if he fails all tests, has less need to be comprehensive than a disjunctive test, where the defendant fails if he fails any of the tests. A conjunctive test, like those used in adjudicating the Commerce Clause, only requires one behavior to change if test are failed, and if any test is passed, the defendant need not change any behavior. Disjunctive tests, on the other hand, may require multiple behaviors to change in order to rectify the legal relationship. If only one of the tests is applied, the defendant would be free to change just that behavior, creating an unjust result if application of the other tests would have shown another behavior that needed to be changed. That said, comprehensive rulings are not favored for cases involving well-established case law, as the courts have already established what is and is not acceptable behavior.
And there’s another consideration for a comprehensive ruling. This case caused a huge rift in the community. In order to begin its healing process, Dover needed closure. Closure could only be brought by a comprehensive ruling that addressed all the issues. This is a primary reason the Dover CARES slate announced before the elections that they wanted to get a ruling prior to doing anything about the ID policy.
Finally, Larry tries to argue that something that didn’t happen and wouldn’t have happened might cause something that couldn’t have happened. Since this narrative has gotten quite long, and he makes a similar argument in his Criticism #13, I will delay my analysis of this claim until then.
>>>(3) Jones arrogantly assumed that his opinions are conclusive and that other judges should not bother to independently judge the same issues. The Dover opinion said, “[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.“(pages 63-64) Presumably one of the reasons for this ballyhoo of the Dover opinion was that Judge Jones knew that the case was not likely to be appealed and hence the opinion would likely have little intrinsic precedential value as just an unreviewed district-court opinion.<<<
A judge is supposed to assume that his Opinion is conclusive – it is his job, just as an engineer’s design decision is conclusive. A judge that does not feel his Opinion is conclusive has no business signing the Order, just as the engineer should not seal his drawings if he is not confident in his design. Surely, as a former PE, you can understand this analogy, Larry. Oh, and your denigrating and disparaging use of opinion is noted – you are deliberately trying to conflate the legal use of the term with the popular definition, just like when creationists (and Luddites like Larry) say evolution is “just a theory.”
Judge Jones is not claiming that other judges should not bother to judge the same issues, rather that if he ignored the question of whether ID is science, it would almost certainly come up in a subsequent trial, which means a repeat of all the expert testimony given at the Dover trial. That would mean that all that time spent during trial would have been wasted. If, however, he does address the question (as he did), future trials will not have to spend as much time on the question, even if the parties decide to revisit the issue. Also, his decision will discourage other school districts from establishing similar policies, thus discouraging lawsuits raising the exact same issues he faced. This goes back to the disjunctive discussion in my previous response.
This is a “case of first impression,” which is a legal term of art that indicates the first time a certain legal question arises (in this case, whether teaching ID is unconstitutional). Since future courts will rely on this ruling, it is important for Judge Jones to present as much detail on how he reached his decision – not just the facts, but also why they were so persuasive. This is important not just so that other courts can use his rulings, but so they can examine his conclusions critically and decide if what he found persuasive is persuasive in light of their own precedents. Indeed, if Judge Jones’s decision is so terrible from a legal standpoint as Larry claims, by including so much detail he leaves himself open to other courts showing where he went wrong. Good jurisprudence is to explore in detail these types of cases, as they will be used as persuasive authority in future cases, regardless of whether an appeal is filed. Of course, the higher up the system it goes, the more value it has, as well as gaining binding authority (mandatory precedent). But despite Larry’s attempts to denigrate district court opinions, they remain a valuable and persuasive addition to case law. Wikipedia’s article on Precedent is a useful (though incomplete) introduction to the distinction between binding and persuasive precedent.
>>>(4) Jones‘ blanket prohibition of any scientific criticism of Darwinism in Dover public-school science classes directly contradicts the Supreme Court‘s following statement in Edwards v. Aguillard: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.“ In the conclusion section of the Dover opinion, Jones said that one of the three prohibitions that he intended to include in the official order was a prohibition against “requiring teachers to denigrate or disparage the theory of evolution“ (Page 138. This specific prohibition was not actually included in the official order, but that is beside the point).<<<
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean -- neither more nor less.’ – Lewis Carroll, Through the Looking Glass
Like the ill-fated egg from Alice’s adventures, Larry insists that words mean what he wants them to mean, even if the authoritive definitions disagree. (Check out the rest of the chapter to see other familiar Larryisms). Unfortunately for Larry, the courts in the USA aren’t found at the bottom of a rabbit-hole, nor on the far side of a mirror. Instead, they rely on a standard set of definitions, without regard to what the Humpty Dumpty’s of the world think word should mean. And part of that standard set is the acknowledgement that sometimes a word has several different meanings depending on context.
First, let’s take a look at common definitions of three important words: denigrate, disparage, and criticism.
denigrate
1. To attack the character or reputation of; speak ill of; defame.
2. To disparage; belittle.
from Latin: to blacken
disparage
1. To speak of in a slighting or disrespectful way; depreciate; belittle.
2. To bring reproach or discredit upon; lower the estimation of.
from Middle English: to degrade
Notice that these two words have a very strong negative connotation. Both mean belittle, one means defame, the other means to speak of disrespectfully. Does this sound like anything you would expect from a serious scholarly pursuit? Historical note: a peerage is a noble title. Therefore, to disparage originally meant to remove from the nobility – in other words, to remove or attempt to remove from a privileged position.
criticism
1. Disapproval expressed by pointing out faults or shortcomings.
Synonym: unfavorable judgment
2. A serious examination and judgment of something.
Synonym: critique
3. A written evaluation of a work of literature.
Synonym: literary criticism
Notice that the second and third definitions are value-neutral, while the first one is negative. The definitions for denigrate and disparage clearly fit the first definition, but not the second or third definitions. What Larry is trying to do is claim that scientific criticism meets the first definition. In fact, he has in the past denied the other definitions out of hand. He’s attempting to conflate the common use of criticism (first definition) with the scholarly definition (second and third) in an attempt to discredit – just like creationists do with “theory”. Look at the synonym for the second definition – critique. There’s an interesting phenomenon regarding criticism. When people use the term criticism, they usually either append a qualifier or use “critique” instead to indicate criticism made seriously and without negative intent. An example is constructive criticism; and wouldn’t you rather have someone critique your performance than criticize it? The simple fact is, when people talk about critiques, more specifically when scientists talk about scientific critiques or scientific criticism, they don’t belittle, defame, blacken, or otherwise attempt to tarnish a theory’s reputation. Rather, they make a serious, honest examination that requires a complete and accurate understanding of the theory being judged. Disparaging and denigrating criticisms are the antithesis to scientific critiques – one could quite properly call them unscientific criticisms. Scientific critiques are held to higher standards than garden variety criticism, and part of that higher standard is the elimination of denigration and disparaging comments.
This is a distinction the Supreme Court in Edwards understood. Notice that they use the phrase “scientific critique,” not “scientific criticism.” The word choice is deliberate. They are leaving the door open for a very limited type of critique, as it is possible that science may someday supplant evolutionary theory. But the Supreme Court makes it quite clear what the limits are – that they must be scientific. Let’s take a look at the entire paragraph from Edwards.
We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. Indeed, the Court acknowledged in Stone that its decision [p594] forbidding the posting of the Ten Commandments did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization. 449 U.S. at 42. In a similar way, teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause.
What does it say? It offers a specific way for an alternative to evolution to be taught. The requirements? They must be scientific theories, and they must have a clear secular purpose or intent. “Bogus science” that denigrates and disparages real science is not scientific, nor does it have a clear secular purpose or intent. Judge Jones did not issue a blanket prohibition on scientific criticism – rather, he issued a blanket prohibition on a specific type of unscientific criticism. And he in no way violated the Supreme Court’s decision in Edwards v. Aguillard - rather, he accurately recognized that the exception carved out by the Court did not include unscientific criticisms.
W. Kevin Vicklund said 11-19-06 @ 8:16:39 AM ) --
>>>>>>From page 14 of his decision, Judge Jones wrote,
The Third Circuit conducted the endorsement inquiry first and subsequently measured the challenged conduct against Lemon’s “purpose” and “effect” standards. with the following footnote: We do note that because of the evolving caselaw regarding which tests to apply, the “belts and suspenders” approach of utilizing both tests makes good sense. That said, it regrettably tasks us to make this narrative far longer than we would have preferred.
So there you have it. Judge Jones had no choice but to apply the endorsement test first, and in fact was forced to also apply both prongs of the Lemon test. <<<<<<<
Jones was not forced to do anything. He only said that utilizing all of these tests by means of a "belt and suspenders" approach "makes good sense" -- he did not say that he was required to apply all the tests or that he was required to apply all the tests in any particular order, and he did not say why applying all the tests in a particular order made "good sense." I have never seen the idea that the endorsement test and the prongs of the Lemon test should be applied in any particular order. In contrast, the judicial tests for the "dormant commerce clause" are applied in a particular order. e.g.: (1) is a state burdening interstate commerce; (2) if so, does the burden have a legitimate public benefit; (3) is there a less burdensome alternative; and (4) is the burden excessive in comparison to the benefit.
Jones was not required to apply all of the tests if he ruled that the ID policy positively failed any of the tests. To use a baseball analogy (Chief Justice John "Ump" Roberts just loves baseball analogies), the World Series ends as soon as one team has won four games. To use another analogy, a mechanic (at least an ethical one) does not keep working on a particular problem on a car after the problem has been fixed.
Anyway, to me the issue is not what tests Jones was supposed to apply, but whether it was necessary to rule on the scientific merits of irreducible complexity and ID in order to reach a decision. I am saying that the answer is NO.
>>>>>>From the Modrovich opinion: Thus, in applying the endorsement test, we do not examine the County’s motivations in displaying the Plaque, but consider the Plaque’s effect on the reasonable observer, determining whether the reasonable observer would perceive it as an endorsement of religion.
Therefore, Judge Jones was obligated by very clear precedence to rule first on the endorsement test, and could not consider the religious motivations in so doing. <<<<<<
In your above quote of Modrovich, the 3rd circuit court of appeals did not say that religious motivations could not be considered in applying the endorsement test -- the appeals court only said that it was not considering religious motivations in that particular case. Furthermore, the Kitzmiller opinion did not even cite the above statement from Modrovich. You have this bad habit of using citations and reasoning that the judges themselves did not use in their opinions. You have even tried to justify decisions where the judges themselves said nothing (i.e., my cases).
>>>>>First of all, did Judge Jones actually rule IC to be religious? Not directly <<<<<
OK, so he indirectly ruled that irreducible complexity is religious. Sheeesh.
>>>>> First, it is terrible jurisprudence to alter rulings based on whether someone might appeal. <<<<<<
My main point is that awareness that an appeal was unlikely probably encouraged Jones to show a lack of judicial restraint.
>>>>>He claims the old board members are the original defendants. This is false, and Larry knows it – we have told him this many times. <<<<<
That line that I have been "told" something is really getting under my skin -- just telling me something does not make it true.
The old board members who were voted out could be considered original defendants because: (1) they had a lot of control over the defendants' side before being voted out of office, and then completely lost that control, including the power to decide on whether to appeal; and (2) the new board members were not responsible for the old board members' decisions. The personal immunity that the old board members had did not mean that they were not defendants in some ways. Also, the ACLU, the AUSCS, and Pepper Hamilton were the true plaintiffs becaust they had complete control (assuming that the nominal plaintiffs were unable or unwilling to pay for legal representation) over the decisions on the plaintiffs' side -- the nominal plaintiffs were just "mascots."
In the Hurst v. Newman (El Tejon Unif. School District, Tejon, Calif.), the plaintiffs used a different approach -- the defendants were expressly sued both as individuals and in their official capacities. I don't know the legal effects of this approach (for example, could the defendants have appealed an adverse decision if they had been voted out of office?).
>>>>> The real defendants are the taxpayers, and they chose not to appeal by electing a different set of representatives – they didn’t get the right stripped away from them. <<<<<
WHAT? The taxpayers never made the decision on whether or not to appeal -- it was never put to public vote. Many of the taxpayers wanted the board to try to minimize the legal expenses, which the board failed to do when it decided to not repeal the ID policy prior to the decision. The potential cost of an appeal would have been very small compared to the cost of the original trial.
>>>>> That is because the appeals court, even when they consider a case de novo, generally defers to the original court on findings of fact. <<<<<
When the appeals court defers to the original court's findings of fact, then the case by definition is not "de novo."
>>>>> A comprehensive ruling thus saves judicial resources (both in time and money) by significantly reducing the risk that a case be remanded to determine an issue not explored in the ruling, and by covering all the issues, it ensures that a just decision is reached. <<<<<
That's ridiculous -- a comprehensive decision can waste resources by requiring more testimony & evidence and a longer opinion than may be necessary for deciding the case.
>>>>>A conjunctive test, where the defendant fails only if he fails all tests, has less need to be comprehensive than a disjunctive test, where the defendant fails if he fails any of the tests. . . . .A conjunctive test, like those used in adjudicating the Commerce Clause, only requires one behavior to change if test are failed, and if any test is passed, the defendant need not change any behavior. <<<<<<
Commerce clause cases use what you call the "disjunctive" test, not what you call the "conjunctive" test. And you have me totally confused with this "change of behavior" stuff.
And a "conjunctive" test has more "need" to be comprehensive than a "disjunctive" test -- in fact, a "conjunctive" test must be comprehensive because only by performing all the parts of a test can it be determined whether the defendant fails them all.
>>>>> And there’s another consideration for a comprehensive ruling. This case caused a huge rift in the community. In order to begin its healing process, Dover needed closure. <<<<<
"Closure"? Hahahahaha. There has been no closure -- people around the country are still arguing about the decision, so do you think that they are not still arguing about it in Dover? And in Dover they are probably still exchanging recriminations over who is to blame for the huge $1 million legal bill. So much for this "closure" crap.
If the Dover school board was just interested in closure, why didn't they just appeal? That would have resulted in even more closure, at a relatively small expense.
I am now bracing myself for the inevitable claims that Kevin demolished all of my arguments. It happens every time. Without fail.
Kevin Vicklund said ( 11-19-06 @ 8:18:13 AM ) --
>>>>>. Judge Jones is not claiming that other judges should not bother to judge the same issues, <<<<<<<
The opinion's following statement, which I have already quoted, says it all --
“[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.“(pages 63-64)
It was not essential to his holding that an Establishment Clause violation occurred.
>>>>> . . . .if he ignored the question of whether ID is science, it would almost certainly come up in a subsequent trial, which means a repeat of all the expert testimony given at the Dover trial. That would mean that all that time spent during trial would have been wasted. <<<<<
He could have avoided spending that time just by refusing to hear expert witness testimony in the first place, as the district judge in Edwards v. Aguillard refused to do. The situation was the same as in Edwards -- the expert witnesses had not participated in the enactment of the government's law or policy and so could not shed any light on the motives of the defendants. You Darwinists harp on "precedent" while ignoring this precedent in Edwards.
>>>>>Since future courts will rely on this ruling <<<<<
Hopefully the Kitzmiller decision has been so badly discredited that other courts won't touch it with a ten-foot pole.
Reply to Kevin Vicklund's post of Sunday, November 19, 2006 8:20:12 AM
One of the problems with responding to Kevin is that he rambles on and on, making it difficult to choose a specific key statement to respond to.
The fact is that the words "disparage" and "denigrate" may be arbitrarily applied to any criticism of evolution theory. Kevin just gets into arbitrary semantic hairsplitting. Kevin, did it ever occur to you that others' interpretations of the meanings of words might be different from yours? And Judge Jones did not say that ideas that disparage or denigrate evolution are OK so long as those ideas are scientific. And who decides what is and what is not scientific?
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