Museum of Unnatural History

A news article reporting on the construction of a $25 million "Creation Museum" says:

PETERSBURG, Ky. (July 31) - Like most natural history museums, this one has exhibits showing dinosaurs roaming the Earth. Except here, the giant reptiles share the forest with Adam and Eve.


That, of course, is contradicted by science, but that's the point of the $25 million Creation Museum rising fast in rural Kentucky . . . . . . . .


"If the Bible is the word of God, and its history really is true, that's our presupposition or axiom, and we are starting there," museum founder Ken Ham said during recent tour of the sleek and modern facility, which is due to open next year.

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Ed Brayton: Judge Jones is above criticism

So far as hypocrite Ed Brayton is concerned, Judge Jones, the infamous judge who decided the Kitzmiller v. Dover case, can do no wrong.

In a recent article on his blog "Dispatches From the Culture Wars," Ed Brayton said,

Jon Rowe and I have spent much of the last two years pointing out the numerous false quotations and false claims about the religious views of the founding fathers that are tossed about by both sides in debate over church/state separation. While false quotes are not as common on the separationist side, they're not unheard of, and we still have to deal with the perpetual "they were all deists" claims, which is as false as claiming that they were all Christians.

Yet Ed has never condemned Judge Jones for Jones' following false claims in a commencement speech:

. . . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Far from condemning Judge Jones for stereotyping the religious beliefs of the Founders, Ed Brayton actually expressed approval of Jones' above words -- see here and here.

Judge Jones probably thought that this alleged universal "true religion" of the Founders was Deism, but Deist beliefs include the teleological argument of design. It is sheer speculation to suppose that the Founders who were Deists would have accepted Darwinism -- with its numerous warts -- as a replacement for the teleological argument of design. Even Ed's pal Jon Rowe conceded, "Because our Founders lived before Darwin, ultimately, whatever contemporary position they would have held is speculation and their legacy thus can be taken only so far in this battle."

Furthermore, IMO, "originalism," the idea that our interpretations of the constitution should be governed by the beliefs -- or the perceived beliefs -- of the founding fathers, is asinine. Why should we turn back the clock over two hundred years and live under the principles of another era? We could not even have kept the same basic Constitution for so long if we did not constantly re-interpret it to suit changes in society and technology. Many of the big issues today -- e.g., environmental problems, rights of free expression and privacy on the Internet, and (yes) the controversy over evolution -- were not even on the radar screens of the founding fathers. Originalism has only fostered disrespect for the founding fathers, who are now condemned as racist, sexist and elitist by people who argue against originalism.

This blog has the following related articles:

Judge Jones wrong about Founding Fathers' "true religion"

Judge Jones flunks history and philosophy as well as law and science

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One-sided Los Angeles Times book review

Update: Just got a paper copy of the Los Angeles Sunday Times, and this is the cover article of the Book Review, a regular Sunday Times section of several pages. This article will not go unnoticed. Letters to the editor may be sent to letters@latimes.com . Letters should be brief (250 words or less) and are subject to condensation. They must include a full name (initials and pseudonyms will not be used) and a valid mailing address and telephone number.

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Today's Los Angeles Times has a book review titled "Laws of nature", which reviews three books concerning the evolution controversy. The introduction to the book review asks, "does the concept of 'intelligent design' have validity as an alternative to evolution?" However, the book review's author does not even attempt to answer that question fairly because only pro-evolution books were chosen for review. The book review says,

. . . . . in three quite different books — a collection of essays, a biography of Charles Darwin's intellectual life and a debunker's guide to the debate — some of the nation's most distinguished thinkers step forward as expert witnesses to challenge the ruse of intelligent design directly.

Taken together, these works are essential reading for anyone who sincerely wants to "teach the controversy" as intelligent design advocates so often urge — or to understand its dishonesty. As distillations of the best thinking on this ploy, they ought to be required reading for every high school science teacher and school board member in America.

Way to go -- presenting just one side of the story. True Darwinists of course wholeheartedly approve.

Also, I am tired of seeing intelligent design being treated as though it were the only challenge to evolution theory -- there are other challenges to evolution theory that have little or nothing to do with "design," e.g., challenges concerning co-evolution and the propagation of beneficial mutations in sexual reproduction.

An article in Uncommon Descent brought this book review to my attention.

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Right to criticize judges is under attack

A recent sharp upswing in violence and threats of violence against judges is being exploited to attack the right to criticize judges. An article titled "Judges Clamor for Protection After Killings, Threats" said,

The shooting deaths last February of the husband and mother of U.S. District Judge Joan Lefkow in Chicago brought the issue of judicial security into sharper focus both for judges and the U.S. Marshals Service, which protects federal judges and other court employees .......

"Generally, people today are much more aggressive in communicating their concerns to government officials," he says. "Some are just people who are expressing their displeasure with a ruling. Others go far beyond and cross over into a threat."

Lefkow, in her first public statements after the murders, begged Congress to turn sympathy for her into real protection for judges and their families. She also asked the lawmakers to repudiate political attacks on judiciary ......

"Fostering disrespect for judges can only encourage those that are on the edge, or the fringe, to exact revenge on a judge who ruled against them," she said.......

Sen. Patrick Leahy, a Vermont Democrat who has proposed court security legislation in the Senate, agreed.

"The rhetoric can only stir the pot, and it must stop," Leahy said in a statement. "It is irresponsible."

Well then, I guess that I am irresponsible, because several of my articles on this blog are devoted to disrespecting Judge John E. Jones III, the infamous judge who decided the Kitzmiller v. Dover intelligent design case.

Judge Jones himself said in a speech to the Anti-Defamation League,

We cannot know if, in fact, the killer of Judge Lefkow's family members, who later took his own life, was influenced by the creeping disrespect for the judiciary that exists today. However, I would respectfully suggest that it is entirely likely that it was.

Judge Jones is wrong. Ending public criticism of judges would not end resentment of them. People would still have personal grudges against judges who ruled against them.

Judge Jones went on to say,

And I will share something else with you that I have in common with Judge Whitamore, who presided in the Terri Schiavo case. That is, after our respective decisions, mine in the Dover case and Judge Whitamore's in the Schiavo case in 2005, both of us were under round-the-clock marshal protection for a period of time due to threats that we received, in my case, from various parts of the country.

As the following excerpt from the conclusion section of the Kitzmiller opinion shows, the threats have obviously not discouraged judges from disparaging litigants or controversial ideas:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

Judges should not abuse their positions by taking potshots at litigants or controversial ideas. Judges should follow Chief Justice John "Ump" Roberts principle that judges are like umpires -- it is not their job to pitch or bat and no one ever came to a baseball game to watch the umpire. In contrast, the "umpire" has become the star player of the Dover trial -- the trial made Judge Jones a hot speaker on the lecture circuit and he was chosen to be on the list of Time magazine's 100 most influential people.

Writing this article prompted me to search the Internet for judge jokes. Here is one of my favorites:

Q: What do you call a judge who has an IQ of 40?

A: Your honor.

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Bleeding Kansas Redux II

UPDATE: Casey Luskin has added another reply to John Rennie.

Take down your map, sir, and you will find that the Territory of Kansas, more than any other region, occupies the middle spot of North America, equally distant from the Atlantic on the east, and the Pacific on the west; from the frozen waters of Hudson's Bay on the north, and the tepid Gulf Stream on the south, constituting the precise territorial centre of the whole vast continent. To such advantages of situation, on the very highway between two oceans, are added a soil of unsurpassed richness, and a fascinating, undulating beauty of surface, with a healthgiving climate, calculated to nurture a powerful and generous people, worthy to be a central pivot of American institutions......Against this Territory, thus fortunate in position and population, a crime has been committed, which is without example in the records of the past ..... But the wickedness which I now begin to expose is immeasurably aggravated by the motive which prompted it. Not in any common lust for power did this uncommon tragedy have its origin. ........ But this enormity, vast beyond comparison, swells to dimensions of wickedness which the imagination toils in vain to grasp, when it is understood that for this purpose are hazarded the horrors of intestine feud not only in this distant Territory, but everywhere throughout the country. Already the muster has begun. The strife is no longer local, but national. -- from "Crime Against Kansas" speech by Senator Charles Sumner, 1856

It almost sounds like Senator Sumner was talking about the current controversy over the new Kansas state evolution education standards. With the Aug. 1 election for the Kansas Board of Education just a few days away (See Bleeding Kansas Redux ), the campaigns are really heating up. On one side there is Kansas Citizens for Science and on the other side is Stand Up for Science -- Stand Up for Kansas. LOL

Casey Luskin, a fellow of the Discovery Institute, and John Rennie, chief editor of Scientific American magazine, are now engaged in an Internet debate over the new Kansas evolution education standards. In his Kitzmiller v. Dover opinion, Judge Jones held that ID proponents were guilty of what he called a "contrived dualism":

The court in McLean stated that creation science rested on a "contrived dualism" that recognized only two possible explanations for life, the scientific theory of evolution and biblical creationism, treated the two as mutually exclusive such that "one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution," and accordingly viewed any critiques of evolution as evidence that necessarily supported biblical creationism (pages 21-22) . . . . . . . the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's (page 64) . . . . .Irreducible complexity is a negative argument against evolution, not proof of design, a point conceded by defense expert Professor Minnich(page 72)

Rennie argues,

Casey returns to his point that the standards don't mention I.D., and he tries to make the point that references to "irreducible complexity" are really criticisms of evolution, not positive arguments for I.D.

(quoting Casey)Thus the KSS make it clear that irreducible complexity is framed only as a challenge to evolution and not as an argument for intelligent design.

Yes, but as I noted above, this doesn't prove much because the I.D. movement doesn't have the intellectual honesty or sincerity to posit an actual theory of intelligent design. The I.D. movement counts itself as winning any time it can simply cast doubt on evolutionary arguments, because as I.D. writers have often suggested, the only alternative to evolution must be some kind of design.(emphasis added)

If -- as Rennie alleges -- the ID writers have often suggested this "contrived dualism," is that any justification for his acceptance of it?

The Luskin-Rennie debate is discussed here on Panda's Thumb.

Also, a news article titled "Group plans road trip to promote science standards" said,

TOPEKA - A group defending the state's new science testing standards for public schools plans a road show next week through Kansas just days before state school board elections.

A leader of the Intelligent Design Network says the speaking tour has nothing to do with efforts to promote re-election of neo-conservative school board members friendly to their cause.

"Our goal is to make sure the public is properly informed on that issue," said John Calvert, managing director of the Intelligent Design Network at Lake Quivira.

However, considering the timing of the speaking tour, it seems that the tour has a lot to do with the imminent election.

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There is no constitutional separation of bogus science and state.

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Hypocritical Darwinists shamelessly cozy up to religion

Hey, you Darwinists! I thought that Darwinism was all science and had nothing to do with religion!

The National Center for Science Education, which despite its innocuous-sounding name is devoted to suppression of criticism of Darwinism in the public schools, has a vacancy for a full-time permanent position called "Faith Project Director". The online ad for the job says,

Faith Project Director

The National Center for Science Education, a non-profit organization that defends the teaching of evolution in the public schools, seeks candidates for the post of Faith Project Director.

The FPD's duties will include:

developing materials pertaining to evolution and religion for print and web;
representing NCSE to the faith community, in print and in person;
serving as liaison between NCSE and professional theological societies and religious organizations;
speaking to the press about issues involving evolution education and challenges to it;
counseling teachers, administrators, parents, and others facing challenges to evolution education.

Candidates should have either formal academic training in or extensive informal knowledge of theology, particularly as it relates to science. A record of involvement in or understanding of the creationism/evolution controversy is a plus. A scientific background, especially in biology or geology, and experience in science education at the high school level are desirable but not necessary. Excellent communication skills, both written and oral, are necessary. Travel may be required.

Full-time permanent position with medical benefits in Oakland, California, to start as soon as possible. Salary commensurate with experience and competitive with similarly sized non-profits.

It is interesting that although candidates are expected to have strong backgrounds in theology, a scientific background in biology or geology is merely "desirable but not necessary." Also, the NCSE does not merely "[defend] the teaching of evolution in the public schools," but actively seeks to suppress the teaching and even the mere mention of criticism of evolution in the public schools.

Also, an article in Uncommon Descent says,

For IMMEDIATE RELEASE on October 12, 2005

Contact: Larry Caldwell
Phone: 916-774-4667
lcaldwell@qsea.org

Lawsuit Alleges that Federally-Funded Evolution Website Violates Separation of Church and State by Using Religion to Promote Evolution

San Francisco, CA— A California parent, Jeanne Caldwell, is filing a federal lawsuit today against officials of the National Science Foundation and the University of California at Berkeley for spending more than $500,000 of federal money on a website that encourages teachers to use religion to promote evolution in violation of the First Amendment.

“In this stunning example of hypocrisy, the same people who so loudly proclaim that they oppose discussion of religion in science classes are clamoring for public school teachers to expressly use theology in order to convince students to support evolution,” said Larry Caldwell, President of Quality Science Education for All, who is co-counsel in the suit with the Pacific Justice Institute ......

The lawsuit also alleges that the website is being used to further the religious agenda of a private organization, the National Center for Science Education (NSCE), which has a “long history of religious advocacy” on the evolution issue. According to the suit, the NCSE, which helped design the website, provides religious “outreach” programs and “preaching” on evolution to churches, all aimed at convincing people of faith that there is no conflict between their religious beliefs and evolution.

There are other flagrant examples of Darwinists cozying up to religion, e.g., "Evolution Sunday" and the "Clergy Letter Project". The Clergy Letter that was signed by clergy members includes the following statement:

We believe that among God’s good gifts are human minds capable of critical thought and that the failure to fully employ this gift is a rejection of the will of our Creator. To argue that God’s loving plan of salvation for humanity precludes the full employment of the God-given faculty of reason is to attempt to limit God, an act of hubris.

Finally, there is Kenneth Miller, author of Finding Darwin's God: A Scientist's Search for Common Ground Between God and Evolution, who as an expert witness in kitzmiller v. Dover and Selman v. Cobb County testified against the mere mention of criticism of Darwinism in public-school science classrooms.

There is now a double standard here: as I noted in my article "Aptly named 'Lemon test' sucks", "Darwinists like Kenneth Miller are free to express their religious beliefs and say that their belief in Darwinism is consistent with and even based upon their religious beliefs, but critics of Darwinism do not have this freedom." However, Darwinism's religious connections may someday backfire if a judge uses them as a basis for ruling that Darwinism is a religious concept.

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More buffoonery from Judge Jones

The Philadelphia Inquirer reported the following statements made by Judge Jones during the Dover trial:

Sitting in the barren visiting judge's chambers in Harrisburg (he usually hears cases in Williamsport), Jones ponders a question about the movie Inherit the Wind, starring Spencer Tracy as lawyer William Jennings Bryan and Gene Kelly as columnist H.L. Mencken.

He said he saw the film -- based on the landmark Scopes trial that tested a Tennessee law forbidding the teaching of evolution -- years ago.

Jones says he plans to watch the movie again, soon.

"It would help put things in historical context," he said. "I don't know if it would be helpful to the decision I have to make."

Then he laughs. "You know," he said, "nobody ever remembers who played the judge in that movie." (emphasis added)

Contrary to his statement that the movie would "help put things in historical context," the movie was very loosely based on the actual Scopes trial. The movie's negative portrayals of fundies could have biased Jones against the defendants and led to some of the Dover opinion's derogatory statements about them, e.g., accusing them of "breathtaking inanity." Furthermore, Jones statement of his intention to see the movie again violated his pledge to avoid unnecessary outside influences that could affect his decision.

A page on the Univ. of Missouri -- Kansas City's website about the Scopes trial says:

Inherit the Wind does not purport to be a historically accurate depiction of the Scopes trial ..... Place names and names of trial participants have been changed. Lawrence and Lee created several fictional characters, including a fundamentalist preacher and his daughter, who in the play is the fiancé of John Scopes ..... William Jennings Bryan, Matthew Harrison Brady in the play, is portrayed as an almost comical fanatic ...... The townspeople of fictional Hillsboro are far more frenzied, mean-spirited, and ignorant than were the real denizens of Dayton.

Also, a Wikipedia article on Inherit the Wind notes several important differences between the actual trial and the play and/or the movie -- e.g., both the play and the movie differed from the trial in the following important way: "In answer to a question from Drummond concerning the Origin of Species, Brady says he has no interest in 'the pagan hypotheses of that book.' In reality, Bryan was very familiar with Darwin's writings and quoted them extensively."

Judge Jones joked that "nobody ever remembers who played the judge in that movie." In fact, nobody ever remembers the name of the judge in the actual Scopes trial, though the trial is sometimes called "the trial of the century" and is ranked very high in any list of the top trials of the 20th century. So the megalomaniacal Judge Jones decided to write as broad a decision as possible in the Dover trial in order to ensure that he would be remembered one way or another. In his Senate confirmation hearing, Chief Justice John "Ump" Roberts said that a judge is like an umpire -- it is not the umpire's job to pitch or bat and no one ever came to a baseball game to watch the umpire. But Judge Jones wanted to be the judicial equivalent of a big baseball star on steroids. You can rest assured, Judge Jones, that you will never be forgotten -- your name will become a synonym for "lousy judge."

Considering the breathtaking inanity of Judge Jones' Dover opinion and speeches following the Dover trial, an appropriate name for a play or movie about the Dover trial might be "Inherit the Hot Air."

This article adds to my rapidly growing list of articles condemning Judge Jones:

"Judge Jones wrong about Founding Fathers' 'true religion' "

"More 'breathtaking inanity' from Judge Jones"

"Adulation of Judge Jones"

"Judge Jones flunks history and philosophy as well as law and science"

"Judge Jones is hot speaker on the lecture circuit"

"Judge Jones the hypocrite"

Judge Jones gets dishonorable mention in the following article:

"NYC Mayor Bloomberg's commencement speech took swipe at ID"

My condemnations of Judge Jones' rulings in Kitzmiller v. Dover are on:

"Traipsing into breathtaking inanity -- absurd rulings in the Dover Intelligent Design case"

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More hypocrisy from Ed Brayton

Hypocrite Ed Brayton made the following comment about the replacement of DaveScot as comment moderator on Uncommon Descent:

I don't think the fact that he edited people's comments to put his own in was a big deal. You could still tell who said what, so it's just a matter of format. It was the inconsistency with which he did it. With the Panda's Thumb, we have 25 different contributors, each of whom controls the content of their own posts and the comments attached to them, and we simply don't all agree on how to handle them. You can expect inconsistency there. But DaveScot kept making grand pronouncements of what he was and wasn't going to allow, he deleted comments (and posts) based solely on what made him look bad, and he treated even those on his own side like dirt. Even the ID fans on the blog thought he did a lousy job. He's one of those guys who runs on pure ego, and those are the last kind of people you put in charge of anything.

This is coming from a jerk who banned me permanently from his blog because he disagreed with my literal interpretation of Rule 12 of the Federal Rules of Civil Procedure. Talk about running on "pure ego."

As for DaveScot's complaint that dropping out of the comment moderation window in order to post a separate comment would have been a burden for him, I think that complaint would have some validity if the comment moderation window does not identify the topic or thread where the original comment is posted (I am emailed copies of all comments posted on this blog but the topic or thread is not identified, so I often have to search for the comment if I want to post a response).

DaveScot's replacement as comment moderator will be Denyse O'Leary, the new co-host of Uncommon Descent.

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Bleeding Kansas Redux

For the second time in its history, Kansas has become a site for a proxy war between warring factions across the nation. The reason this time is that half the members of the Kansas Board of Education that passed the "teach the controversy" evolution education standards are up for re-election on August 1, and many out-of-state forces are trying to influence the election. Information and commentary are here, here, and here.

Darwinists know that the Kansas Board of Education did not do anything that could be considered unconstitutional -- otherwise, the Darwinists would have sued the Kansas BOE a long time ago. Opinion polls show that the majority of the public wants both the weaknesses and the strengths of evolution theory to be taught, so there is a good chance that some other state(s) will pass a "teach the contoversy" science education standard. So why the fuss?

The Darwinists have been moaning that states that have adopted a "teach the controversy" standard -- e.g., Kansas and Ohio -- have added disclaimers repudiating any intention to add intelligent design to the curriculum. Also, the Darwinists have been insisting that all criticisms of Darwinism are parts of ID. One of the big reasons for this emphasis on ID is that ID and one of its components, irreducible complexity, were the only criticisms that Judge Jones trashed by name in his Dover opinion. A lot of the criticisms of Darwinism are not ID, but ID is such an important criticism of Darwinism that it seems that any "teach the controversy" program would eventually get into ID.

Darwinism must be pretty badly flawed if the Darwinists go to such great lengths to suppress criticism of it.

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Condescending Darwinists "whacking down" anti-Darwinist arguments

Darwinists tend to be very condescending when debating anti-Darwinists. This condescension is especially apparent in a response that John Derbyshire, a National Review Online (NRO) columnist, wrote to an NRO article by George Gilder, a co-founder of the Discovery Institute. Derbyshire says,

It’s a wearying business, arguing with Creationists. Basically, it is a game of Whack-a-Mole. They make an argument, you whack it down. They make a second, you whack it down. They make a third, you whack it down. So they make the first argument again.

-- and anti-Darwinists see arguing with Darwinists as a wearying business. Darwinists have this idea that any argument that they present is automatically an airtight refutation. For example, Darwinists think that the idea of "exaptation" (also called "co-option" or "co-optation" ) -- the notion that some parts of an irreducibly complex system had different functions before becoming part of the system -- completely refutes the idea of irreducible complexity, but exaptation is "whacked down" here and here. The absurd concept of exaptation is the Darwinists' only answer to irreducible complexity.

It would be less boring if they’d come up with a new argument once in a while, but they never do.

Questioning co-evolution is not new, but I have questioned co-evolution in ways that I have been unable to find elsewhere on the Internet. Not even the "experts" over at Panda's Thumb were able to help me.

Also, there are things called "oldies but goodies" -- an argument is not necessarily bad just because it is old. And new evidence can revive or reinvigorate old arguments -- for example, recent discoveries about the great complexity of one-celled organisms have added support to the principle of irreducible complexity.

Nowadays I just refer argumentative e-mailers to the TalkOrigins website, where any argument you are ever going to hear from a Creationist is whacked down several times over. Don’t think it’ll stop ’em, though.

You're right -- it won't stop 'em. Many of the TalkOrigins website's rebuttals of creationist arguments are very sketchy, consisting of just a few sentences. For example, the TalkOrigins' article on "obligate mutualism" does not even begin to address the questions about co-evolution that have been raised on this blog. So arguments against co-evolution were not even "whacked down" once, let alone several times over.

Creationists seem not to be aware of how central evolution is to modern biology. Without it, nothing makes sense.

Contrary to the idea that evolution is central to modern biology, I assert that it is possible to study biology without any reference to evolution theory at all (in fact, lots of students have done it), but if it makes biologists more comfortable, they can continue to use the concepts and tools of Darwinism even while believing that all or part of it is untrue.

To say to biologists: “Look, I want you to drop all this nonsense about evolution and listen to me,” is like walking into a room full of pilots and aeronautical engineers and telling them that classical aerodynamics is all hogwash.

Well, classical aerodynamics looks like hogwash. No method of scientific or engineering analysis has a lower physical relationship to reality than conformal mapping, which is used in aerodynamics. NASA says "Conformal mapping is a mathematical technique used to convert (or map) one mathematical problem and solution into another. It involves the study of complex variables ....... Many years ago, the Russian mathematician Joukowski developed a mapping function that converts a circular cylinder into a family of airfoil shapes." I previously pointed out another kind of analysis that has little or no physical relationship to reality: the use of complex-plane mathematics in the analysis of AC circuits -- the complex impedance vector is particularly devoid of physical meaning.

Biologists are of all scientists least in need of a new metaphysic. Neurophysiology aside, it is in the “hard” sciences that our epistemological underwear is showing. When physicists have to resort to explanations involving teeny strings vibrating in scrunched-up eleven-dimensional spaces a trillion trillion trillion trillionth of an inch across, or cosmologists try to tell us that entire universes are proliferating every nanosecond like bacteria in a petri dish, there is a case to be made for a metaphysical overhaul. Not that work in these fields has come to a baffled dead stop, as George seems to imply ........ Biology, by contrast, really has no outstanding epistemological problems.

Ahem. Biology has no epistemological problems? Biologists don't even have a hypothesis -- let alone a theory -- for explaining the origin of life.

Why is the proportion of scientists willing to accept it [creationism] still stuck below (well below, as best I can estimate) one percent?

Wrong. A recent poll of physicians -- who are well-trained in the biological sciences -- shows that a large percentage of them are skeptical of Darwinism.

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Darwinists' disdain for their opponents extends well beyond biology and into other fields, such as law. For example, in response to my literal interpretation of Rule 12 of the Federal Rules of Civil Procedure, "Dan," a friend of Ed Brayton who teaches constitutional law, responded with nothing but invective and Ed banned me permanently from his blog, "Dispatches from the Culture Wars." The Darwinists think that in any debate, they are the only ones who are informed and who can think logically. Everyone else is stupid and ignorant.

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Is Darwinism science -- or philosophy?

It has amazed me that though the debate over evolution is supposed to be a scientific one, people on both sides of the debate have been presenting arguments in philosophical terms as opposed to scientific terms. For example, Darwinists will often argue that "intelligent" design and irreducible complexity must be wrong because no supernatural designer would ever make "unintelligent" designs, of which there are many. Here are philosophical arguments presented at a public forum at Texas Tech by Darwinist Kenneth Miller, who should need no introduction to those who are familiar with the evolution controversy:

Question: On the idea of the origin of life from the very beginning… That’s one of the problems ..[unintelligible].. It’s difficult to understand at this point how life got established. But my question would be is that if it was organized , you know, self-organized by proteins or whatever, then the idea that it’s even self-organizing and that life from them on seemed to be self-organizing, you know, through random mutation, however you want to look at it, does not that sound very similar to design, or some form of hand involved in the original that allowed it to unfold?

Answer: Now, since he spoke from the back, I think everyone heard him, so I won’t repeat that.

The answer is Yes, it does. And in a way, the very use of the word “design” to label the current anti-evolution movement is a brilliant piece of public relations. And the reason for that is that any person who sees meaning and purpose and order to the universe — and I certainly do — in a sense believes in a kind of “design,” that things sort of make sense. Einstein told us that the most incomprehensible thing about the universe is that it seems to be comprehensible, and that’s an extraordinary statement to make. So that’s a kind of “design.”

But the interesting thing is that in the context of the public debate in the United States today, what you described is actually not what is called “intelligent design,” and here’s the way in which I would put it. I, and I think all other evolutionists, would point to the fact that the capacity for life is inherent in matter. Matter is…. Life is a chemical and physical phenomenon. I think that the universe does have a “design,” and that the design is so grand that it makes the evolution of life not only possible but almost inevitable.

The ironic thing is that the proponents of intelligent design actually don’t think that. Because they don’t think that the universe is well enough designed to make the evolution of life inevitable. They think constant intervention on the part of the creator is required to bring about the first life, the first living cell, the first chordate, the first insect, the first bird. In other words, the designer or the creator had to keep tinkering with it. So, in away, In think most biologists look at the universe and have a grander appreciation for the orderliness of the universe based on what many of us regard as the almost inevitability of the evolution of living things.

Miller's above remarks are philosophical and not scientific. So one question is the following: If Darwinism is based on philosophy, then why should Miller's Darwinist philosophy be taught as scientific fact in the public schools while Michael Behe's philosophy of irreducible complexity is banned from mere mention in public schools on the grounds that it is just a fable inspired by religion?

While I am here, I would like to make a few responses to Ken Miller's above statements:

First, while it is true that the anti-Darwinism movement in often labeled "design," one of the reasons why I think that this label is unfortunate is that there are many criticisms of Darwinism that have little or nothing to do with "design." Such criticisms that I have presented in this blog concern co-evolution, the propagability of beneficial mutations in sexual reproduction, and chromosome counts. Also, the very term "design" has created problems because it implies the existence of a supernatural designer.

Miller said, "I, and I think all other evolutionists, would point to the fact that the capacity for life is inherent in matter." Well, duh. There are many elements and compounds that have properties that are virtually essential for the existence of life as we know it. For example, Wikipedia says the following about water's value to living things:

“From a biological standpoint, water has many distinct properties that are critical for the proliferation of life that set it apart from other substances. It carries out this role by allowing organic compounds to react in ways that ultimately allows replication. All known forms of life depend on water. Water is both vital as a solvent in which many of the bodies solutes dissolve, and an essential part of many metabolic processes within the body (e.g. significant quantities of water are used during the digestion of food).”

Water’s abilities as a solvent are so good that it has been called “the universal solvent.” Its good abilities as a solvent are related to the high polarity of the water molecule -- Wikipedia says, “Strongly polar compounds like inorganic salts (e.g. table salt) or sugars (e.g. sucrose) dissolve only in very polar solvents like water……” It was the belief that water exists on Mars (the “canals”) that led to speculation that life existed on Mars. Carbon and its compounds also have special properties that are virtually essential for life as we know it. There has been speculation about the possibility of living things that are not based on carbon compounds and water — see “Alternative Biochemistry” in Wikipedia – but there appear to be no really good substitutes for carbon compounds and water.

Miller's above statements are also discussed on Uncommon Descent and Panda's Thumb.

(I have introduced post "folding" on this blog -- called "expandable post summaries" by this blog service -- where only an introduction is shown on the main page. It was necessary to add software to my template. To add this feature to your Blogger.com blog, go to Blogger Help for instructions. Now if someone would just show me how to list the most recent comments posted anywhere on the blog. I have created a new blog just to experiment with new features so that I don't risk messing up this blog.)

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Hypocritical Kenneth Miller's evolution disclaimer

Kenneth Miller was a plaintiffs' expert witness in two recent evolution disclaimer cases, Kitzmiller v. Dover and the Selman v. Cobb County textbook sticker case. As it turns out, though, biology textbooks that he has co-authored have their own evolution disclaimer -- a denial of the notion that Darwinism conflicts with religion. Here is an excerpt from those textbooks:

Some scholars speculate that fear of being branded a heretic for his materialism contributed to Darwin's 21-year delay in publishing his theory. The same antimaterialistic reasoning also drives much modern-day opposition to evolutionary thought.

Darwin remained to the end a devout, if somewhat unorthodox, Christian. "I see no good reason why the views given in this volume should shock the religious feelings of anyone," he wrote. Like religious scientists of many faiths today, he found no less wonder in a god that directed the laws of nature than in one that circumvented them.
-- from Kenneth Miller's and Joseph Levine's biology textbook, Biology: Discovering Life. From Telic Thoughts

Unlike the Dover and Cobb County evolution disclaimers, Kenneth Miller's above evolution disclaimer is a blatantly religious statement. Although Miller was a co-author rather than the sole author of the textbook, arguably he still has some responsibility for the above statement.

An article in Evolution News & Views also quoted the passage that contained the above quote. This article says that the latest editions of the textbook "do not seem to contain such anti-theological language." So this textbook was cleaned up, just as the ID book Of People and Pandas was cleaned up by replacing the term "creationism" with "intelligent design."

Also, I was astonished that the plaintiffs in establishment clause cases, Kitzmiller and Selman, had the chutzpah to choose an expert witness -- Kenneth Miller -- who claims to be motivated by religion.

Despite the fact that the Kitzmiller v. Dover case has probably been the most thoroughly analyzed court case in history, it seems that new flaws in it are still being discovered almost daily, more than six months after the decision.

A related article on this blog is "Kenneth Miller the hypocrite"

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Ed Brayton still lying about HR 2679

Desperate Ed Brayton is still making his fallacious arguments against HR 2679. In his latest diatribe, "More Anti-ACLU Lies", he said,

Out of such awards first has to come all of the costs of the litigation, which can be very high depending on how long the case dragged on, how many depositions were taken, and so forth. Then in most cases, the bulk of the fees will go not to the ACLU but to the private law firm that handled the case. In most such cases, the ACLU will end up with only a small portion in legal fees, but even then they can only recover the fees for the billable hours their attorneys actually put in on the case. So the rewards merely cover the expense of the trial. It's hardly a profitable thing to do.

Ed has nothing to back up his statements as to what happens in "most" ACLU lawsuits. Ed is always jumping to conclusions -- in contrast, when I don't know something, I admit that I don't know. We do know, however, what happened in Dover: the outside law firm is getting only reimbursement for expenses, and what is left of the $1 million award after deduction of expenses (I believe that expenses were $250,000) is being split by the ACLU and the Americans United for Separation of Church and State. For information, see here and here.

Also, Ed does not understand that the cost of the litigation is usually small compared to the attorney fee award. As I remember, the plaintiffs' expenses (costs) in Kitzmiller v. Dover were $250,000, a fairly small amount compared to the original calculated bill of $2,067,226. With attorneys' hourly rates so high, it is easy to see why the attorney fees greatly exceed expenses.

Though we generally don't know how the awards are split, the American Bar Association's Rule 6.1, Voluntary Pro Bono Publico Service says that pro bono attorneys should donate at least part of any fee award:

[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means. (emphasis in original)

Anyway, these attorney fee rip-offs are a problem regardless of who finally gets the money.

Ed ignores the fact that the Dover plaintiffs and their legal representatives made no effort to economize: (1) there were 9-10 plaintiffs' attorneys of record, with at least five of them in the courtroom on every day of a six-week trial; (2) they had 6 expert witnesses, and the defense was under pressure to initially present a like number of expert witnesses; and (3) there were unnecessary depositions of expert witnesses who had all submitted expert witness reports.

The double-talking Darwinists, ACLU, etc. claim that these exorbitant fee awards are not "punitive" and then use the threat of these awards to blackmail governments into doing their bidding.

Ed cites cases in which these attorney fees have probably been awarded to plaintiffs in free exercise lawsuits instead of establishment clause lawsuits, but I have heard no one else complain about fee awards in free exercise lawsuits.

I have proposed a sensible alternative: a cap on attorney fee awards for both establishment clause and free exercise clause lawsuits. This should cover the clear-cut violations of these clauses.

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"Philadelphia lawyers" of Dover ID case

Some trolls here say that they hang around this blog just for the entertainment, so I decided to give them some.

Fittingly, the private law firm that helped represent the plaintiffs in the Kitzmiller v. Dover case, Pepper-Hamilton LLP, is headquartered in Philadelphia. "Philadelphia lawyer" is a pejorative term meaning "shyster" or "pettifogger." A Woody Guthrie song titled "Philadelphia Lawyer" has the following lyrics:

Lyrics as recorded by ROSE MADDOX & THE MADDOX BROTHERS, 1940s;
transcribed by Manfred Helfert.
© 1949 Michael H. Goldsen, Inc.

Way out in Reno, Nevada,
Where romance blooms and fades,
A great Philadelphia lawyer
Was in love with a Hollywood maid.
"Come, love, and we will wander
Down where the lights are bright.
I'll win you a divorce from your husband,
And we can get married tonight."

Wild Bill was a gun-totin' cowboy,
Ten notches were carved in his gun.
And all the boys around Reno
Left Wild Bill's maiden alone.
One night when he was returning
From ridin' the range in the cold,
He dreamed of his Hollywood sweetheart,
Her love was as lasting as gold.

As he drew near her window,
A shadow he saw on the shade;
'Twas the great Philadelphia lawyer
Makin' love to Bill's Hollywood maid.
The night was as still as the desert,
The moon hangin' high overhead.
Bill listened awhile to the lawyer,
He could hear ev'ry word that he said:

"Your hands are so pretty and lovely,
Your form's so rare and divine.
Come go with me to the city
And leave this wild cowboy behind."
Now back in old Pennsylvania,
Among those beautiful pines,
There's one less Philadelphia lawyer
In old Philadelphia tonight.

LOL

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Cowardly hypocrite Ed Brayton has refused my challenge

Ed Brayton is not only a hypocrite -- he is a cowardly hypocrite. I sent an email to him saying, "Ed, It is easy for you and your pals to take cowardly potshots at me from the safety of your blog, where I am banned. So I am challenging you to either unban me on your blog or debate me on my blog." In a post titled "Larry's Plea for Attention", Ed turned down my challenge. Well, Ed, I certainly do not need to plead for attention from you -- I get plenty of attention from you whether I want it or not.

Ed wrote, "You're banned here because you annoy me." OK, you trolls, let's hear again that Ed is tolerant of comments that he disagrees with.

Of course, my blog takes potshots at Ed, too -- but the difference is that Ed and his pals are free to post comments over here (and both Ed and his pals have posted comments here) while I cannot post comments over there. Ed and his pals have been taking potshots at me where I am an unable to respond. I cannot even directly respond to Ed's articles that are entirely devoted to attacking my ideas. That's cowardice on the part of Ed and his pals.

Ed Brayton has no credibility. He is just a big bag of hot air.

POSTSCRIPT (the following section was added several hours after the above section was posted):

In his above article, Ed also attacked my remarks about the Edwards v. Aguillard case in my article (post) titled "The case against expert witness testimony in monkey trials". Ed said,

As usual, Larry completely misreads the opinion. Notice that the statement from the court is very specific in saying that expert testimony would not illuminate the purpose of the Louisiana legislature when it made the law. Why is this important? Because the district court's ruling considered only the purpose prong of the Lemon test, not the effect or excessive entanglement prongs. (emphasis in original)

So? The Dover case could also have been decided solely on the basis of the Lemon test's "purpose" prong, because of the obvious religious motivations of the school board members.

Furthermore, I also addressed the issue of the applicability of expert witness testimony to the effect prong -- I said, "(7) -- in establishment clause cases, expert testimony often does not illuminate the purposes of the government or the perceptions of the local community, i.e., this testimony is a "Monday morning battle of the experts" (emphasis added to original). The "effect" prong in these cases was primarily concerned with the perceptions of the local citizens as to whether or not there appeared to be a government endorsement of religion. However, the highly advanced knowledge presented by the expert witnesses in three weeks of testimony in the Dover case far exceeded what a fairly well-informed but not expert local citizen -- or that citizen's proxy, the imaginary "objective" or "reasonable" observer -- would be expected to know. According to the Dover opinion (page 16), the "reasonable observer is an informed citizen who is more knowledgeable than the average passerby," but there is no requirement that the reasonable observer be exceptionally well informed and I assert that such a requirement would be unreasonable because the reasonable observer is supposed to represent the typical well-informed citizen.

As for the Lemon test's third prong, the "entanglement" prong," Justice O'Connor said that this prong applies only where the government is directly involved with a religious organization, as in giving aid to religious schools. Where this prong is applicable, it is often incorporated into the second ("effect") prong, as noted in the Selman v. Cobb County district-court decision.

Ed said,

Judge Jones didn't need to refer to expert testimony to conclude that the board acted for a religious purpose, all he needed was the fact witnesses' testimony - just like in Edwards.

YES! So you actually agree that the expert witness testimony was not necessary in the Dover case -- Judge Jones could have ruled against the defendants solely on the basis of their religious motivations.

I'll bet that Ed is now going to complain that I "quote mined" him.

Note -- my original statement has been revised as follows:

"Unfortunately, the courts in later cases did not follow Edwards' lead of refusing to hear the testimony of expert witnesses who had played no part in directly influencing the government policies where such testimony was arguably not necessary for deciding the case."

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Judge Jones wrong about Founding Fathers' "true religion"

This article is a follow-up to "Judge Jones flunks history and philosophy as well as law and science".

I think that it is unfortunate that religion is an issue in the debate over evolution, and I am particularly disturbed that some people are abusing the establishment clause here to suppress scientific ideas that they don't like. I also feel that the Founding Fathers' religious beliefs should not control our interpretation of the Constitution. And I am also greatly disturbed that Judge Jones has shown that his lousy Kitzmiller v. Dover decision was influenced by his hostility towards organized religion and his distorted ideas about the Founding Fathers' religious beliefs and reasons for creating the establishment clause. Here again is an excerpt from his Dickinson College commencement speech:

.....we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state. (emphasis added)

For starters, Judge Jones' above statement about "true religion" shows such great hostility towards organized religion that he should recuse himself from any establishment clause or free exercise case.

Also, contrary to Jones' statement that the Founders' beliefs about "true religion" are "very clear," the only things that are "very clear" are that today there is no consensus at all about the Founders' religious beliefs and that Jones' simplistic description of the Founders' "true religion" is wrong. A Christian Science Monitor article titled "How religious did they expect us to be?" says:

Both Christian fundamentalists and their militantly secular opposites tend to cite our founding intellects as the original wellsprings of their philosophies about the proper place for faith in the public arena.

Another Christian Science Monitor article titled "This year, lots of fireworks over the Founders' faith" says:

"People who are fighting battles now, against the Christian right or the secular left, feel their case will be stronger if they have history on their side," says Alan Wolfe, director of the Boisi Center for Religion and American Public Life at Boston College.

At least nine new books this year - such as "Washington's God," "Moral Minority," and "American Gospel" - delve into the Founders' spiritual and ethical beliefs.

Some authors are raising questions about Alexander Hamilton and John Adams. Were they Christians who found salvation in a personal God? Or were they deists, that is, devotees of reason who saw God as a benevolent yet distant creator?

Ironically, though Dickinson College, Jones' alma mater where he gave the above commencement speech, was founded by a Founding Father, Dr. Benjamin Rush, and named for another Founding Father, John Dickinson, the college seal -- designed by Rush and Dickinson -- has a picture of an open Bible and a Latin motto which means, "Religion and learning, the bulwark of liberty." And yet Jones' commencement speech said, "The Founders believed that true religion was not something handed down by a church or contained in a Bible." What a joke. I can't believe this.

Jones is just a lousy judge and a crackpot.

Definition of "federal judge" -- A lawyer who knows a senator (another variation of that cliche`, "it's not what you know, it's who you know"). My thanks to BarryA, an attorney, for that one.

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Challenge to Ed Brayton and his pals

You and your pals talk big, Ed, but you are just big bags of hot air. Since you have banned me from your blog, I challenge you and/or your pals to come here and debate me out in the open. Many of my opponents here are just hecklers who have done nothing except call me wrong, stupid and ignorant and post breathtakingly inane wisecracks.

Now for some more replies to Ed Brayton's nonsense.

In yet another article, Ed Brayton says, "The fact is, the only reason they [the Dover plaintiffs] asked for the nominal damages of $1 per plaintiff was to avoid having the case mooted in case of a school board change (which, of course, did happen) and force the court to rule in the case."

This notion that a claim for nominal damages is alone sufficient to prevent a case from being declared to be moot has been thoroughly debunked in this blog. If there were such a general rule, then all plaintiffs would claim nominal damages and no lawsuit could ever be mooted. Reductio ad absurdum. Q.E.D.. It appears that the 2nd, 6th, and 10th circuit federal courts of appeals have accepted this absurd idea, but there is no evidence that there is generally any such rule about nominal damages. What is the point of having just a claim for a lousy $1 if all your other claims are moot? No one has yet provided a single instance where a court has granted nominal damages and nothing else. Nominal damages are just symbolic tokens of vindication on some other claim -- when all other claims become moot, then the nominal damages claim should become moot also.

==========================================================.

Ed Brayton said,

The legal bills in Lamb's Chapel and Good News Club were almost certainly in the millions of dollars, especially since both went all the way to the Supreme Court and thus required an addition 3 years or so of legal work. Why, then, do we never hear the right accusing the American Center for Law and Justice or the Alliance Defense Fund of using legal fees to "intimidate" school districts into compliance?

Why should the right be complaining about that? If attorney fee awards in free exercise suits are a problem, then why isn't the left complaining about it?

Also, just because these cases went to the Supreme Court does not necessarily mean that they cost millions of dollars in legal fees. You are always jumping to conclusions. Often, the biggest expenses are incurred in the trial court. Appeals are usually done just with briefs, with very short oral hearings sometimes included. In appeals actions, normally the appellant/petitioner gets to file two briefs and the appellee/respondent gets to file one, though sometimes there are extra briefs, like a petition for rehearing. The big factors that drove up costs in Kitzmiller v. Dover were: (1) a horde of plaintiffs' attorneys of record -- 9-10 -- with at least 5 of them in the courtroom every day of a six-week trial; (2) a lot of expert witness testimony -- six plaintiffs' experts and several defense experts; and (3) lots of pre-trial discovery, including depositions. In contrast, the Lamb's Chapel and Good News Club cases were much more clear-cut and probably had no expert witnesses and little or no pre-trial discovery -- these were cases involving exclusion of religious organizations from after-hours use of public-school facilities. However, it is true that other seemingly clear-cut cases also ran up big legal bills, though not as high as Dover -- it has been reported that the ACLU was awarded nearly $800,000 in attorneys’ fees from the city of San Diego, Calif., in a successful effort to prevent the Boy Scouts of America, which acknowledges God in its oath, from continuing to use Balboa Park and that the ACLU, Americans United for Separation of Church and State and the Southern Poverty Law Center gained about $540,000 from the state of Alabama in a successful challenge of the Ten Commandments monument displayed in the State Judicial Building by Alabama Chief Justice Roy Moore.

Anyway, I said that instead of just banning attorney fee awards in establishment clause cases, there should be caps on attorney fee awards for both establishment clause and free exercise clause cases.

========================================================

Ed Brayton said,

..... the fact that Pepper Hamilton decided in this case to forego any reimbursement for billable hours by the attorneys is an anamoly. In most such cases, they will take at least partial repayment of those billable hours, at least enough to break even.....Ordinarily when the ACLU wins a big case like this, they only get a small portion of the legal fee reimbursement because they only have one part time attorney working on it,

How do you know that Dover is an "anomaly" in this regard? You are always jumping to conclusions. A former ACLU staff attorney said,

The ACLU, posturing to the public that it acts on principle and pro bono, in the public interest and without fee, in fact has raked in enormous profits in lawsuits brought under the "establishment clause."

These lawsuits are nationwide, coast to coast, and run literally into millions of dollars in the pockets of the ACLU in "attorney fee awards" - although in fact neither the ACLU nor its mascot plaintiffs have incurred any actual attorney fees.

As a onetime ACLU staff attorney, I know that the ACLU recruits attorneys to take on its cases without fee, and that the ACLU does not charge attorney fees to the persons it uses as plaintiffs.

Large firms often provide attorneys from their pro bono units at no cost to the ACLU....

=====================================================

Before, I called the attorney fee awards in establishment clause cases "draconian," but suggested only one way of reducing the awards -- reducing the number of plaintiffs' attorneys. I will suggest other ways here as well.

Here are some ways in which the Dover plaintiffs' legal representatives could have economized:

(1) -- reduce the number of attorneys of record. There were 9-10 attorneys of record, with at least 5 of them in the courtroom on every day of a six-week trial. In contrast, the defense had just four attorneys of record, and I heard that only one of them was a full-timer.

(2) -- eliminate the expert witnesses or reduce their number. Initially there were six expert witnesses for the plaintiffs and six for the defense, but two or three of the expert defense witnesses dropped out. The testimony of these experts was mostly just a "Monday morning battle of the experts" that did little or nothing to illuminate the purpose of the school board or the perceptions of the local community. In Edwards v. Aguillard, the district court judge refused to hear such expert testimony and the Supreme Court expressly agreed with that decision.

(3) -- eliminate deposition of expert witnesses. There was no reason to depose the expert witnesses, because all of them had submitted expert witness reports and supposedly had long paper trails of publications. Deposing these expert witnesses was like "deposing" federal judicial nominees prior to Senate confirmation hearings.

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The case against expert witness testimony in monkey trials

First, I will give a history of expert witness testimony in monkey trials.

The first "monkey trial," the 1925 Scopes trial, had expert witness testimony, but it was testimony on knowledge of the Bible instead of scientific testimony, and the expert witness was the prosecuting attorney, William Jennings Bryan. "Inherit the Wind", the play and movie that was loosely based on the Scopes trial, also had expert witness testimony by the prosecuting attorney.

McLean v. Arkansas Board of Education(1982), which did not get past the district court level, had a lot of expert witness testimony. In fact, there is now a project to recover as much as possible of the expert witness testimony in that case, which seems silly because this testimony is so outdated, being a quarter-century old.

Things changed radically in Edwards v. Aguillard(1987). In that case, the district court judge refused to hear a "Monday morning battle of the experts" and the Supreme Court agreed with that refusal. The majority opinion said (pages 595-596),

The Louisiana Legislature did hear and rely on scientific experts in passing the bill, but none of the persons making the affidavits produced by the appellants participated in or contributed to the enactment of the law or its implementation. The District Court, in its discretion, properly concluded that a Monday morning "battle of the experts" over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law.

Note the emphasis on the words "properly concluded" -- some people don't seem to understand that a statement of agreement with a lower court's decision is quite a bit different from merely saying that a lower court did not abuse its discretion.

Unfortunately, the courts in later cases did not follow Edwards' lead of refusing to hear the testimony of expert witnesses who had played no part in directly influencing the government policies where such testimony was arguably not necessary for deciding the case. There was a little expert witness testimony in the Selman v. Cobb County evolution-disclaimer textbook sticker case, but it was not a significant factor in the decision, and one of the reasons for that is that the sticker did not specifically identify any criticism of evolution. However, as everyone knows, expert witness testimony was a major part of the Kitzmiller v. Dover trial, taking about half of the six-week trial. The expert witnesses added considerably to the expense of the trial -- there was not only the courtroom testimony but also depositions to be heard and expert reports to be read. There was really no reason for the depositions because all of the expert witnesses had big paper trails of publications. Eighty-five scientists submitted an amicus brief urging Judge Jones to not rule on the scientific merits of intelligent design. Judge Jones could have ruled against the defendants just on the basis of their religious motivations but chose instead to make a broad ruling that used the expert testimony to judge the scientific merits of irreducible complexity and intelligent design. Also, some of the most influential "expert" testimony in Kitzmiller was not scientific testimony but was the conspiracy theories of Barbara Forrest.

Judges themselves have recognized that courts are ill-suited for deciding questions of science. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which concerned the rules for admissibility of expert scientific testimony, the opinion of the court said,

It is true that open debate is an essential part of both legal and scientific analyses. Yet 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.

And in the same case, Chief Justice Rehnquist said in an "other" (neither dissenting nor concurring) opinion --

Twenty two amicus briefs have been filed in the case, and indeed the Court's opinion contains no less than 37 citations to amicus briefs and other secondary sources.

The various briefs filed in this case are markedly different from typical briefs, in that large parts of them do not deal with decided cases or statutory language -- the sort of material we customarily interpret. Instead, they deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review -- in short, matters far afield from the expertise of judges. This is not to say that such materials are not useful or even necessary in deciding how [Federal Rules of Evidence] Rule 703 should be applied; but it is to say that the unusual subject matter should cause us to proceed with great caution in deciding more than we have to, because our reach can so easily exceed our grasp.

There are some court cases -- e.g., product liability cases -- where it is absolutely essential to judge the scientific merits of ideas in order to reach a decision, but I assert that monkey trials do not fall into that category. Here are some reasons why the courts should, where possible, avoid hearing expert scientific testimony and deciding scientific questions --

(1) -- the courts have no constitutional or legal authority to decide scientific questions.

(2) -- scientific questions are outside the judges' areas of expertise.

(3) -- scientific ideas may be hurt by experts who make poor presentations (like Michael Behe's testimony that intelligent design is like astrology)

(4) -- there is often insufficient evidence for ruling on a scientific question -- the evolution v. ID controversy is a prime example!

(5) -- judgments on scientific issues are often highly subjective and arbitrary

(6) -- scientific knowledge is subject to change, which could cause court decisions to become obsolete or outdated

(7) -- in establishment clause cases, expert testimony often does not illuminate the purposes of the government or the perceptions of the local community, i.e., this testimony is a "Monday morning battle of the experts"

(8) -- rejections by the courts stigmatize struggling scientific ideas and make it even harder for those ideas to gain acceptance. Thus, rulings on scientific merits can even impede scientific progress.

(9) -- it is possible for something to have no scientific merit and yet not be considered to be a religious concept -- atrology and alchemy are good examples. There is no constitutional separation of bogus science and state

(10) -- many scientific questions are highly contentious issues, and the answers to many scientific questions should just be matters of personal opinion

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Ed Brayton's outrageous potshots

Considering that Ed Brayton has banned me from posting on his blog, his taking potshots at me on his blog is outrageous. They are here and here.

I will comment on a few of his claims.

First, Ed was totally wrong in his statement that the "ACLU likely got only a small portion" of the $1 million attorney fee award in the Dover case -- the ACLU and the AUSCS split what was left of the award after the deduction of expenses (as I remember, the expenses came to about $250,000). Also, I read somewhere that the ACLU requires its volunteer attorneys to agree to not accept any compensation from attorney fee awards, but I cannot now find proof of that.

Also, Ed also took issue with my following statement from my post titled, Hypocritical Ed Brayton still doesn't get it on HR 2679:

What if this $1 million bill had been called "punitive damages" or a "fine"? As Juliet in Romeo and Juliet would say, "What's in a name? What we call an attorney fee award, by any other name would ...", well, you know the rest. This draconian penalty virtually violates the 8th Amendment's prohibitions against "excessive fines" and "cruel and unusual punishment.

Ed is too dense to understand that (1) my comparison of the $1 million fee award to excessive punitive damages or an excessive fine was perfectly reasonable and that (2) "virtually violates" does not mean the same as "literally violates."

Also, Ed took issue with my following statement from the same post:

(7) The ruling in Blum v. Stenson, 465 US 886 (1984), that the attorney fee award of 42 USC §1988(b) may not be reduced on the grounds that the legal representation was by a non-profit organization (this ruling also presumably applies to representation that was initially pro bono) was based on an erroneous interpretation of a Senate report accompanying the statute. The Supreme Court's quotation of the Senate report said, "It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature......" S. Rep. No. 94-1011, p. 6 (1976). (emphasis added) The quotation of the Senate report said that the fees should not be reduced on the grounds that the rights involved are nonpecuniary in nature, but the quotation nowhere expressly said that the fees should not be reduced on the grounds that the representation was non-profit and/or initially pro bono.

Note the emphasis on the word "expressly" in my above statement. There is simply no proof that the Senate committee ever considered the issue of whether or not the fee award should be reduced on the grounds that the legal representation was non-profit and/or initially pro bono. The Senate report's mere citation of court cases where there was such representation is not proof that the committee specifically considered that issue. Generally, people who read the report rely on what the report expressly says -- this is not a guessing game of trying to read the minds of the report's authors. The court's claim that its decision was based on the Senate report was completely erroneous -- the court might as well have not cited that Senate report at all. That is all there is to it.

Ed Brayton thinks that the fact that the decision in Blum v. Stenson was unanimous is significant. Apparently he never heard the story of the little boy who said that the emperor had no clothes.

I was banned from Ed Brayton's blog mainly because I interpreted a federal court rule in a way that he didn't like, but my interpretation was literal. And a friend of Ed's who claimed to be a teacher of constitutional law chimed in with a response that contained nothing but insults and ad hominems.

On second thought, maybe I should not be so mad at Ed for taking potshots at my blog -- he is giving me some free publicity. I just wish that Panda's Thumb would do the same.

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Dover Ain't Over -- Darwinists now attacking criticism of Darwinism in private schools

It was bad enough that the Darwinists have in recent years been misusing the courts to prevent public schools from merely mentioning criticisms of Darwinism ( Kitzmiller v. Dover, Selman v. Cobb County, and Freiler v. Tangipahoa Parish), but now the Darwinists are even asking the courts to help discourage private schools from presenting criticisms of Darwinism. The University of California recently denied accreditation to some Christian-school courses because of the religious orientation of the textbooks, including biology textbooks. Some students from Calvary Chapel Christian School of Murrieta, Calif. sued UC, and the suit was joined by the Association of Christian Schools International.

In an op-ed piece in the Decatur Daily, Charles Haynes, a senior fellow at the First Amendment Center in Arlington, Va., wrote,

Solely on academic grounds, the most problematic textbook may be the one used in biology. If UC can show that the text presents inaccurate or misleading science, then the university may have a legitimate basis for not accepting the course. If, however, the textbook presents the core information students need to know about biology, then the additional religious content should not disqualify the course. In other words, if the science itself is sound, then the fact that the authors promise to "put the Word of God first and science second" should be irrelevant in the university's decision.

It is hard to find an unbiased opinion about the Christian-school biology textbooks. Is the textbooks' treatment of evolution the sole basis for UC's rejection? Ed Darrell says that he has read the textbooks and calls one of them "shoddy and inadequate," but he specifically criticizes only that book's treatment of evolution:

I’ve read the Bob Jones biology books. The A-Beka books are shoddy and inadequate in biology. They give short shrift to evolution, describing the theory inaccurately and incompletely, and ignoring the practical effects of evolution in genetics and population dynamics, and other places, throughout the book.

Of course, many Darwinists think that a biology textbook should be disqualified merely for raising questions about Darwinism.

I assert that knowledge of the main Darwinian concepts -- changes through time, common descent, and an evolutionary process driven solely by natural genetic variation and natural selection -- is not necessary for a general understanding of biology. And even if such knowledge of Darwinism is necessary, belief in Darwinism is not necessary -- people can use the concepts of Darwinism even while believing that all or part of it is untrue, in the same way that people can use complex-number math in AC circuit analysis while believing that the math has no physical relationship to the circuits.

An article titled "Should Some Students Be Denied College Entrance Because They Used These Textbooks?", by the Association of Christian Schools International, said the following about a meeting between UC personnel, Christian school personnel, and attorneys on both sides of the issue (page 3):

When asked whether poor college performance by students from religious schools prompted the rejection of the textbooks, UC representatives responded negatively. They also acknowledged that UC did not have any objective evidence that students from religious schools are deficient in science when they arrive for their freshman year of college .....

As the discussion continued about the biology books, it became evident that they were rejected because they appeared to state the perspective that the Bible is revelation and along with faith is more authoritative than the observations of science, especially if there were a conflict over a "factual scientific issue."

I am against associating ID and creation science with religion, but the plaintiffs in this case are unfortunately deliberately making that association in order to use the Constitution's free exercise clause as grounds for the suit. The general rule is that constitutional rights may be abridged only for truly compelling reasons, and I feel that UC has not shown any truly compelling reason for discriminating against these Christian-school students.

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More "breathtaking inanity" from Judge Jones

A few days ago, Judge Jones was a guest on a radio talk show ironically named "Smart Talk". Here are my takes on some of his remarks:

On accusations that the Dover decision made him an "activist judge": "People term 'activist judges' judges they don't agree with."

OK, I won't call you an "activist" judge -- I'll just call you a "lousy" judge.

On his written decision for the Dover case, in which he accused the defendants of lying on the stand: "I called it the way I saw it. It was not my purpose to be an avenging angel."

I think that accusing the defendants of lying was OK, but your Dover opinion also demagogically pandered to the Darwinists by accusing the defendants of "breathtaking inanity" and accusing them of 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." Your Dover opinion even accused them of "activism" while denying that you are an "activist" judge.

On Ann Coulter, who criticizes him in her new book: "We have to suffer these arrows because people will disagree with our opinions ... She foments a kind of civic stupidity in my opinion."

The "civic stupidity" of your Dickinson College commencement speech's remarks about the founding fathers' "true religion" really takes the cake -- you said, "The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry." Your remarks showed such hostility towards organized religion that you should recuse yourself in any establishment clause or free exercise case. See "Judge Jones flunks history and philosophy as well as law and science"

On civics education: "We have a culture that is not plugged into current events."

Wrong. Because of the Internet, people today are more plugged into current events than ever before in history. The Internet has made us aware of many things that we otherwise would likely never find out about.

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Hypocritical Ed Brayton still doesn't get it on HR 2679

Ed "It's My Way or the Highway" Brayton is still making his hypocritical arguments in opposition to HR 2679, the bill that would bar attorney fee awards in establishment clause cases -- see here and here. He is still arguing that the only reason the bill's supporters have for supporting it is that the plaintiffs usually win establishment clause lawsuits in court. Wrong.

Also, Ed Brayton makes the big blooper of assuming that the ACLU is getting only a a small part of the attorney fee award in Kitzmiller v. Dover. Pepper-Hamilton is getting nothing except reimbursement for its expenses and the whole kaboodle after deduction of expenses is going to the ACLU and the Americans United for Separation of Church and State.

Here are some points about these attorney fee awards:

(1) The attorney fee awards that defendants must pay in establishment clause cases are often draconian. The Dover school board was soaked for $1 million in fees, though the board deserved little more than a slap on the wrist, if even that much. What if this $1 million bill had been called "punitive damages" or a "fine"? As Juliet in Romeo and Juliet would say, "What's in a name? What we call an attorney fee award, by any other name would ...", well, you know the rest. This draconian penalty virtually violates the 8th Amendment's prohibitions against "excessive fines" and "cruel and unusual punishment." Yet the Darwinists and the ACLU crowd see nothing wrong in this -- many of them even say that the school board "got off easy."

(2) The ACLU, the Americans United for Separation of Church and State, Darwinists, etc., make no bones about the fact that one of the main purposes of these attorney fee awards is intimidation.

(3) Rip-off artists ACLU and AUSCS uses these lawsuits as a major means of fundraising. The ACLU has its own staff attorneys, but outside attorneys who represent the ACLU in litigation work for free and all the attorney fee awards go to the ACLU. Notice that I said "represent" the ACLU, because the ACLU is often the "plaintiff-in-fact" and the nominal plaintiffs are just mascots. The ACLU et al. should find other, more reputable means of fundraising.

(4) Because outside attorneys who help the ACLU and AUSCS are volunteers, there are often more plaintiffs' attorneys of record than there would otherwise be. In the Kitzmiller case, five attorneys from Pepper-Hamilton volunteered, and two of them were partners, a high rank in a 400-attorney law firm. All of the attorneys of record may charge for their time, which can greatly drive up attorney fee awards. In the Kitzmiller case, there were at least five plaintiffs' attorneys in the courtroom on every day of a six-week trial.

(5) Establishment clause lawsuits -- as well as free exercise lawsuits -- are an area of the law that is highly uncertain, inconsistent, and unpredictable. This is especially true because of the infamous Lemon test, which applies only to establishment clause cases. These factors of uncertainty in combination with the threat of an exorbitant attorney fee award often intimidate governments into avoiding actions that the courts might determine to be constitutional. A good example is the Los Angeles County Board of Supervisors' decision to cave in to the ACLU's threat to sue if a tiny cross is not removed from the Los Angeles County seal. No local government in America has deeper pockets than L.A. County, so if the ACLU can intimidate L.A. County, the ACLU can intimidate anyone.

(6) It seems to be generally assumed that only the plaintiffs are eligible for an attorney fee award, but there is no such provision in the fee-shifting statute, 42 USC §1988(b), which only provides for an attorney fee award to the "prevailing party."

(7) The ruling in Blum v. Stenson, 465 US 886 (1984), that the attorney fee award of 42 USC §1988(b) may not be reduced on the grounds that the legal representation was by a non-profit organization (this ruling also presumably applies to representation that was initially pro bono) was based on an erroneous interpretation of a Senate report accompanying the statute. The Supreme Court's quotation of the Senate report said, "It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature......" S. Rep. No. 94-1011, p. 6 (1976). (emphasis added) The quotation of the Senate report said that the fees should not be reduced on the grounds that the rights involved are nonpecuniary in nature, but the quotation nowhere expressly said that the fees should not be reduced on the grounds that the representation was non-profit and/or initially pro bono.

(8) Public officials often find themselves between a rock and a hard place in regard to public expressions of religion, e.g., where there is a question of whether to allow a private individual or organization to publicly express religion, there is a threat of a free exercise lawsuit if such expression is censored and a threat of an establishment clause lawsuit if such expression is allowed. I think that to help keep the playing field level, there should be caps on attorney fees awards for both establishment clause and free exercise lawsuits instead of a ban on fee awards for establishment clause lawsuits only. However, as I said, I think that the current version of HR 2679 is much better than nothing.

Related articles on this blog:

"HR 2679, the bill barring attorney fee awards in establishment clause lawsuits"

"Is the party almost over for ACLU and AUSCS?"

A related article on Uncommon Descent:

"Write to Your Congresscritters in Support of H.R. 2679"

Considering that so many of Ed's positions are so weak, it is no wonder that he bans commenters and comments that disagree with his positions.

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