Close votes in Freiler case show shakiness of Selman and Kitzmiller decisions

A highly significant evolution-disclaimer case that preceded the Selman and Kitzmiller cases, Freiler v. Tangipahoa Parish Board of Education, 185 F. 3d 337 (5th Cir 1999), cert. denied, 530 US 1251 (2000), is virtually unknown today. However, the history of the Freiler case shows how shaky the Selman and Kitzmiller decisions really are. Despite the fact that the Freiler evolution disclaimer -- unlike the Selman and Kitzmiller disclaimers -- actually expressly mentions something religious, i.e., the Bible, the Freiler case fell just single votes short of being granted either an appellate rehearing en banc or certiorari (a rehearing en banc is a rehearing by all the judges of a court, except that 11-judge panels are used in the 9th circuit, and a grant of certiorari is acceptance for review by the Supreme Court). The overconfident Darwinists do not realize how close the Freiler decision came to being reversed.

A petition for a rehearing en banc of Freiler got seven yes votes from the 5th circuit appellate judges, just one vote short of the majority needed to grant the rehearing. The vote was so close that the 3-judge panel that decided the case did not dare report the actual tally. I determined from the records of service of 5th circuit appellate judges that there were 14 such judges in regular active service in 2000, so the vote was evenly split and there was no majority. A rehearing en banc is seldom granted. Also, the seven judges who voted yes submitted a long dissenting opinion. Furthermore, the Supreme Court fell just one vote short of the four votes needed to grant certiorari, and in a very rare action, Justice Scalia, joined by Justice Thomas, wrote a long dissenting opinion against the denial of certiorari -- normally denials of certiorari are made without comment. And Scalia did not mince words -- he said, "I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal." These close votes and the accompanying dissenting opinions could be indications of how courts would vote in similar cases. The vote splits and dissenting opinions in court decisions are often considered to be of critical importance, as in Supreme Court abortion cases. The Kitzmiller decision will never be directly reviewed by a higher court, so speculation on how a higher court might rule on this case is moot, but the Selman case is still very much alive.

The Freiler case was cited six times in the Kitzmiller opinion (the name appeared eight times, but in two places the name appeared twice in one citation) and about seven times in the Selman opinion.

The disclaimer in the Freiler case was provided by the following resolution that was adopted in 1994 by the Tangipahoa Parish School Board:

Whenever, in classes of elementary or high school, the scientific theory of evolution is to be presented, whether from textbook, workbook, pamphlet, other written material, or oral presentation the following statement shall be quoted immediately before the unit of study begins as a disclaimer from endorsement of such [evolution] theory.

It is hereby recognized by the Tangipahoa Parish Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept.

It is further recognized by the Board of Education that it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter. Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion. (emphasis added)

The last sentence above, which urges students to question ideas that are based on religion, can hardly be considered to be an endorsement of religion. In fact, it is the opposite.