ID and the Purpose Prong: Ed Brayton's Stupidity on Display

Some time ago, I posted an article titled Another legal scholar says that Dover decision was too broad , which is about an article -- written by Philip Italiano -- in the Rutgers Journal of Law and Religion. Ed "For crying out loud" Brayton (my new nickname for him is one of his favorite expressions) has just now posted a negative response to Italiano's article. The title of Ed's article, "ID and the Purpose Prong: Hypocrisy on Display," was the inspiration for the title of this article.

Ed took issue with the Rutgers article's argument that Judge Jones should not have ruled on the scientific merits of ID in the Kitzmiller v. Dover case. Before getting into that, though, I want to discuss a minor point that Ed raised. Ed, quoting Italiano's article, said,

Today's Lemon test provides that a government sponsored message violates the Establishment Clause of the First Amendment if: 1) it does not have a secular purpose, and 2) its principal or primary effect advances or inhibits religion.

There is a third prong as well, requiring that the policy not create "excessive entanglement" between church and state, but that prong is irrelevant to this case (and to most cases, frankly).

The district court opinion of Selman v. Cobb County said,

Both the Supreme Court and the Eleventh Circuit have acknowledged that the second and third prongs of the Lemon test are interrelated insofar as courts often consider similar factors in analyzing them. . . . . In fact, the Eleventh Circuit, like several other circuit courts, has combined the second and third prongs of the Lemon analysis into a single "effect" inquiry. (citations omitted)

However, the appeals court decision that vacated and remanded Selman erroneously spoke of the third prong as though it still existed in the 11th circuit. Also, in her concurring opinion in Lynch v. Donnelly, Justice O'Connor said that the entanglement prong should be limited to institutional entanglement:

In this case, as even the District Court found, there is no institutional entanglement. Nevertheless, the respondents contend that the political divisiveness caused by Pawtucket's display of its creche violates the excessive entanglement prong of the Lemon test. . . . . In my view, political divisiveness along religious lines should not be an independent test of constitutionality.

Although several of our cases have discussed political divisiveness under the entanglement prong of Lemon, * * * * we have never relied on divisiveness as an independent ground for holding a government practice unconstitutional. . . . . .The entanglement prong of the Lemon test is properly limited to institutional entanglement.

So much for the minor point about the 3rd (entanglement) prong of the Lemon test -- now on to the important stuff. Ed said of Italiano's article,

. . . . . .he provides no analysis at all of the obvious differences between Epperson and Kitzmiller, the most important of which is that in Epperson there was no alternative theory to consider at all.

What in hell does that have to do with the question of whether the purpose prong was alone sufficient to decide the case?

Ed said,

. . . .the Edwards court in fact did exactly what Judge Jones did, considered the question of whether the alternative to evolution being advanced was a scientific theory or a religious idea, determined that it was religious, and declared the endorsement of that idea by a public school to be unconstitutional.

Wrong. The courts in Edwards v. Aguillard did not do exactly what Jones did, and astonishingly Ed quotes and ignores what the courts did differently in Edwards and why. Ed quoted from the Supreme Court's Edwards opinion,

"The District Court did not err in granting summary judgment upon a finding that appellants had failed to raise a genuine issue of material fact. Appellants relied on the 'uncontroverted' affidavits of scientists, theologians, and an education administrator defining creation science as "origin through abrupt appearance in complex form" and alleging that such a viewpoint constitutes a true scientific theory. The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law." Pp. 594-596

So in Edwards, no oral or written expert witness testimony was allowed. In contrast, there was about three weeks of expert witness oral testimony in Kitzmiller and there were also several expert witness reports, even though the situation in Kitzmiller was the same as it was in Edwards: none of the expert witnesses nominated for the Kitzmiller case had "participated in or contributed to the enactment" of the ID policy and so could "not illuminate the contemporaneous purpose" of the school board when it enacted the ID policy.

The key difference between Edwards and Kitzmiller is that the Court in Edwards was only considering the legitimacy of a motion for summary judgment, not doing a review of a full trial court decision.

The "key difference" between Kitzmiller and the Edwards decisions that Ed is talking about here is that Kitzmiller was a district court decision whereas the Edwards decisions were at the appellate and Supreme Court levels, so Kitzmiller was not a review of another decision whereas the Edwards decisions were.

Italiano also ignores the basic role of a district judge. A district judge's goal is not to be overturned by a higher court, which means not giving either side grounds for appeal. And that means allowing both sides to present the strongest possible case for their position. In this case, both sides made the question of the nature of ID the key component of their case.

For crying out loud, Ed, a judge does not have to decide something just because both sides ask him to. I thought that the judge was supposed to be the great big honcho here. If two opposing parties ask a judge to decide whether string theory is right or wrong, would he be obligated to decide?

As for your statement that a district judge's goal is "not to be overturned by a higher court," judges often risk a remand by ruling on narrow grounds. For example, a precedent might prescribe the following sequence of tests for "dormant commerce clause" cases and also specify that the sequence is to stop as soon as one of the tests is failed:
(1) does a state burden on interstate commerce exist?
(2) is the burden intentional or incidental?
(3) does the burden serve a compelling public interest?
(4) is there an absence of less-burdensome alternatives?
According to some precedents, the judge is supposed to end the sequence of tests as soon as a firm decision is reached, regardless of whether the judge thinks that the decision can be strengthened by continuing the tests. For example, if a court firmly decides that a burden on interstate commerce does not serve a compelling public interest, there is no need to determine whether there are any less burdensome alternatives, is there? Look at it this way. Supreme Court CJ John "Ump" Roberts says that judges are like umpires, so here is a baseball analogy: if a batter flies out, the batter does not also need to be forced out at first and tagged out too.

Ed says,

Now, having debunked this argument I want to focus on the clear hypocrisy of the ID movement in promoting it. The hypocrisy is this: for years creationists and IDers have been arguing that the purpose prong of the Lemon test is constitutionally dubious, unfair to religious voters and should be done away with. Now, when it's convenient for them, they're suddenly arguing that the courts should consider only the purpose prong and nothing else.

Only a profoundly retarded nitwit like Ed Brayton would see an inconsistency between (1) opposing the purpose prong and (2) trying to take advantage of the purpose prong so long as the courts insist on using it.

Also, anti-ID legal scholar Jay Wexler also said that Jones should not have ruled on the scientific merits of ID, and to my knowledge Ed never said anything about that.

It is no wonder that Ed won't let me post on his blog -- he can't stand to have a commenter who tells the truth.