Sandefur on Wexler and Luskin

Timothy Sandefur wrote on Panda's Thumb,

Professor Jay Wexler’s article on the Kitzmiller case, Kitzmiller And The “Is It Science?” Question, 5 First Amend. L. Rev. 90 (2006), has been the source of some glee for Creationist Casey Luskin. In the article, Wexler contends that Judge Jones’s finding that Intelligent Design isn’t science was unnecessary and unwise. Luskin, never one for, you know, legal thinking, immediately pounced on the article to say that Wexler “agreed in print with my position on this question.” Now that I’ve seen the article, I can say that, as is typical for Luskin, this is at best a half truth.

Wexler’s argument is that Jones needed only to find that Intelligent Design is religion, not to discuss whether or not ID might also qualify as science, or whether it is impossible for the two to cross over. . . . . the fact that ID is religion is alone sufficient to prohibit government schools from teaching it as fact, regardless of any scientific bona fides it might or might not have. Not exactly Creationist Luskin’s view.

Both Wexler and Luskin agree that no judge should rule on the question of whether ID is science. The fact that they agree on this view is not changed by the fact that they have different reasons for holding this view.

Sandefur continues,

Wexler’s argument is that Jones needed only to find that Intelligent Design is religion, not to discuss whether or not ID might also qualify as science, or whether it is impossible for the two to cross over. . . . Analyzing whether ID is science is helpful in the overall analysis of whether it is constitutional for a school to teach it. Not dispositive, no — but helpful, and as Wexler notes, determining whether something is unconstitutional endorsement of religion “is necessarily a fact-intensive inquiry that considers the entire circumstances surrounding a government action or policy.” Id. at 98. Wexler is right to say that ID’s religious nature is itself sufficient to make it out of bounds for government schools, but since ID claims to be scientific, it is important to conduct that analysis as well.

The question should not be whether a ruling on the scientific merits of ID was helpful but should be whether such a ruling was absolutely necessary to reach a decision in the case. There are several reasons why judges should try to avoid ruling on controversial scientific questions. There are also several reasons why it was not necessary for Judge Jones to rule on the scientific merits of ID:

(1) Under the "purpose" prong of the Lemon test, Jones had already ruled against the defendants on the basis of their religious motivations (it is widely thought that the purpose prong of the Lemon test should be abolished, but as the saying goes, "when life gives you lemons, make lemonade").

(2) Jones could have followed the precedent of Edwards v. Aguillard by refusing to hear expert scientific testimony on the grounds that none of the proposed expert scientific witnesses had participated in the enactment of the Dover ID policy and so could not illuminate the school board's purpose in enacting that policy.

(3) Jones could have ruled -- in the words Selman v. Cobb County -- that the ID statement served the secular purpose of "presenting evolution in a manner that is not unnecessarily hostile" so as to "[reduce] offense to students and parents whose beliefs may conflict with the teaching of evolution." Such a ruling would not require a determination of whether ID is science, whether ID is religion, or whether an "objective observer" (or a "reasonable observer") would perceive the ID statement as a government endorsement of religion. It is noteworthy here that ID was not actually being taught but was just mentioned.

(4) Jones could have just required that the term "intelligent design" -- which suggests the existence of a supernatural designer -- be struck from the ID statement.

(5) Jones could have ruled that ID is not religion because it is based on scientific observations and not on religious sources. If ID is ruled to be non-religious, then there is no need to determine whether ID is good science, because there is no constitutional separation of bad science and state (the 1st Amendment does not say, "Congress shall make no law respecting an establishment of bad science, . . . .).

(6) It is a myth that Jones was required to apply the "Lemon test". Since the Supreme Court itself has not applied the Lemon test in some establishment clause cases, the SC is not in a good position to insist that lower courts always use this test. Jones could have instead used just the "endorsement test", a test which I think makes much more sense than the Lemon test.

Judge Jones' claim that he would have been an "activist" judge if he had not ruled the way he did simply does not hold water.

Sandefur then trivializes the ID-as-science ruling by likening it to judicial rulings on such questions as the meanings of the terms "chicken," "insect repellent," "seed," etc.. Those other questions are of far less importance and presumably answering those questions was necessary to decide the cases.

In the comment thread following Sandefur's post, Peter Irons says,

Tellingly, Luskin and his DI cohorts don’t argue with two portions of Judge Jones’s opinion. First, that the Dover school board acted with religious motives in adopting the pro-ID statement that school officials read to biology students (over the protest of the science teachers). Second, that ID is an inherently religious concept, although I wonder why the DI hasn’t denounced this finding, since it undercuts their argument against Jones’s holding that ID isn’t science.

The argument that DI does not dispute the finding that the Dover school board acted with religious motives is just a straw man -- no one disputes this finding. As for the "protest of the science teachers," the Kitzmiller opinion says (page 112), "despite the fact that the teachers strongly opposed using Pandas [the ID book "Of Pandas and People"] as a companion text, they agreed that Pandas could be placed in the classroom as a reference text as a compromise with the Board." However, it is unfortunate that the teachers were given no say in the wording of the ID statement. Also, in the end, Pandas was placed in the school library and not in the classrooms.

As for Irons' claim that the DI hasn't denounced the finding that ID is an inherently religious concept, that is simply untrue.

Another post on Wexler's paper and Luskin's response to it is here.