Anti-ID legal scholar says Jones should not have ruled on whether ID is science
The opinion's main problem lies in the conclusion that most evolution supporters were particularly pleased with -- namely, the judge's finding that ID is not science. The problem is not that ID is science. Maybe it is science, and maybe it isn't. The question is whether judges should be deciding in their written opinions that ID is or is not science -- a question that sounds in philosophy of science -- as a matter of law. On this question, the answer is "no," particularly when the overall question posed to the Court is whether teaching ID endorses religion, not whether it is or is not science. The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous to both science and freedom of religion. The judge's determination that ID endorses religion should have been sufficient to rule the policy unconstitutional.
As for the last statement above, "The judge's determination that ID endorses religion should have been sufficient to rule the policy unconstitutional," I partly disagree that ID endorses religion. ID makes no reference to any religious sources. I feel that the only apparent endorsement of religion is the term "intelligent design," which implies the existence of a supernatural designer. I think that the choice of the name "intelligent design" was unfortunate -- they should have stuck with names without religious connotations, e.g., irreducible complexity.
Anyway, after Judge Jones decided that ID appears to be an endorsement of religion, presumably one of the purposes of next judging the scientific merits of ID and irreducible complexity was to determine whether these ideas have any scientific merits that could be considered to be a "legitimate secular purpose" that would justify an exception to the general rule that the government may not give the appearance of endorsing religion. But what kind of "legitimate secular purpose"? Must it be an intended purpose of the school board? The Dover school board could not have had an intended secular purpose, because the testimony of some of the board members -- particularly that of William Buckingham, one of the two leading advocates of the ID policy on the board -- showed that they had no idea what intelligent design is. Could it be a perceived secular purpose, that is, a secular purpose that is perceived by the students and the general public? Judge Jones had already decided -- before addressing the question of whether ID is science -- that the students and the general public perceived the school board's ID policy as being a "strong endorsement of religion": the Kitzmiller opinion said, "We have now found 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. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science." Or could the "legitimate secular purpose" be any conceivable secular purpose -- in this case, a finding that ID and/or irreducible complexity have some scientific merits? In the Kitzmiller trial, judging those scientific merits was the purpose of hearing the scientific testimony from experts who had not participated in the enactment of the Dover ID policy, but the Supreme Court indicated in Edwards v. Aguillard that such after-the-fact testimony could be considered to be just a pointless "Monday-morning battle of the experts" because it could not illuminate the school board's intended purposes. Should the intended or perceived purpose be considered at all, since different people have different purposes and what really counts anyway is the "effect"? How can a court decision be universally applicable if it is wholly or partly based on people's purposes or motives? The determination of purpose is part of the judicial "Lemon test", which has fallen into disfavor.
Anyway, I feel that (1) the courts have no general constitutional or legal authority to make decisions on scientific questions and (2) the courts are ill-suited for deciding scientific questions, and I therefore feel that such decisions should be avoided unless absolutely necessary for deciding a case, such as a product-liability case. I feel that judging the scientific merits of ID and irreducible complexity was not necessary in Kitzmiller. Judge Jones ignored an amicus brief submitted by 85 scientists urging him to refrain from ruling on the scientific merits of ID.
I think that attorney Edward Sisson has the right idea that the way to deal with these evolution-disclaimer cases is the "political insider-outsider" principle of the judicial "endorsement test". Under this principle, the government should be allowed to make statements of a possibly religious nature if doing so is necessary to prevent particular religious groups from feeling like political "outsiders." Right now, the atheists and those who believe that Darwinism is compatible with religion are definitely the ones who feel like the political "insiders." Not only is Darwinism the only explanation of life origins that is actually being taught, but any mention of criticism of Darwinism -- whether the criticism is religious or not -- has been banned by some court decisions. Since teaching evolution promotes atheism and/or the belief that evolution is compatible with religion, those who believe that evolution is incompatible with religion are entitled to an evolution disclaimer statement as a concession to their religious beliefs. Indeed, in the Selman v. Cobb County textbook sticker case, the judge ruled,
. . . . after considering the additional arguments and evidence presented by the parties and evaluating the evidence in light of the applicable law, the Court remains convinced that the Sticker at issue serves at last (sic) two secular purposes. First, the Sticker fosters critical thinking by encouraging students to learn about evolution and to make their own assessment regarding its merit. Second, by presenting evolution in a manner that is not unnecessarily hostile, the sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution.. For the foregoing reasons, the Court concludes that the Sticker satisfies the first prong of the Lemon analysis.(emphasis added)
However, the judge ruled against the textbook stickers for other reasons.
Under this "political insider-outsider" principle, an evolution disclaimer could be upheld as constitutional without a ruling that any criticism of evolution has any scientific merit.