Yet another legal expert takes Judge Jones to task

It is not surprising that legal experts affiliated with the Discovery Institute and fundy outfits (I do not consider DI to be a fundy outfit) have opposed the Kitzmiller v. Dover decision, but a large number of independent legal experts (by "independent," I mean neither a legal representative in the case nor affiliated with an organization that supports or opposes the decision, e.g., DI and ACLU) have also opposed all or part of the Kitzmiller decision -- for examples, click on the label "Expert opinions about Kitzmiller" at the bottom of this post. In fact, most of the comments about the decision that I have heard from independent legal experts have been negative. Now Casey Luskin is quoting yet another legal expert who opposes the Kitzmiller decision:

I believe that teaching intelligent design in public schools is constitutional (outside of the unusual context of the Kitzmiller situation). First, under Establishment Clause doctrine, States may not disapprove of religion. And, a fortiori, courts cannot disapprove of religion. Of course, I am not arguing that a State must teach intelligent design. States are free within quite broad parameters to set their own curricula. As important as the question of intelligent design is, failure to teach it hardly constitutes disapproval of religion. But when the Court invalidates teaching a theory of origin because of its partial congruence with religion, that is disapproval.(emphasis added)
(Arnold H. Loewy, “The Wisdom and Constitutionality of Teaching Intelligent Design in Public Schools,” 5 First Amendment Law Review 82, 88 (2006).)

[I]nvalidating the teaching of intelligent design in public schools is flatly inconsistent with free speech principles. … If the Supreme Court ever gets a case, unlike Kitzmiller, where the School Board or Legislature's apparent motive for integrating intelligent design into the curriculum is to maximize student exposure to different ideas about the origin of the species, and not to indoctrinate religion, the Court should uphold the provision.
(Loewy, 5 First Amendment Law Review at 89.)

Loewy's paper was published in the same journal issue -- dedicated to "religion in the public schools" -- that published Jay Wexler's and Richard Katskee's papers that I discussed in a previous post. Loewy, Wexler, and Katskee wrote that issue's three papers that directly pertain to the Kitzmiller decision. Loewy and Wexler both oppose major parts of the decision and only Katskee (who represented the plaintiffs) presumably completely supports the decision.

Loewy made the qualifying statement, "outside of the unusual context of the Kitzmiller situation," indicating that he thinks it was proper to rule against the Dover school board because of the religious motivations of its members (though arguably this religious motivation should not have been a factor). But the Kitzmiller decision does not restrict itself just to the Kitzmiller situation but holds that it is unconstitutional to require teaching or even just mentioning ID in any public-school science classroom anywhere in the USA. And Loewy's above statements indicate that he too buys into the "contrived dualism" idea that there are only two alternatives, evolution theory and ID.

The distinction between evolution-disclaimer statements and the actual teaching of criticisms of evolution has been largely ignored, but this distinction is -- or at least should be -- important. Some of the following quotations apply only to evolution-disclaimer statements but some also apply to the actual teaching of criticisms of evolution theory. I think that the following quotations show that there are grounds to rule the Dover school board's ID policy to be constitutional even if it is hypothesized that ID is strictly a religious concept. These quotations are taken from a comment that I made on another blog and linked to on this blog:

Albert Alschuler, a law professor emeritus at Northwestern University Law School, wrote of the Dover case,

The court offers convincing evidence that some members the Dover school board would have been delighted to promote their old time religion in the classroom. These board members apparently accepted intelligent design as a compromise, the nearest they could come to their objective within the law. Does that make any mention of intelligent design unconstitutional? It seems odd to characterize the desire to go far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens. The Dover opinion appears to say that the forbidden preference taints whatever the board may do, and if the public can discern the board’s improper desire, any action it takes also has an unconstitutional effect. If board members would like to teach Genesis as the literal truth, the board may not direct teachers even to mention the anomalies in the theory of natural selection that the court itself recognizes. The court seems to declare, "Because we find that you would like something you can't have, we hold that you can't have anything."

Supreme Court Justice O'Connor, in defining a judicial test that is now called the "endorsement test", said that the government -- which includes the courts -- can run afoul of the establishment clause by disapproval of religion as well as by endorsement of religion:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. . . . . . Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. -- from concurring opinion in Lynch v. Donnelly (emphasis added)

In an open letter concerning the Selman v. Cobb County evolution-disclaimer textbook sticker case, attorney Edward Sisson said in a statement echoing the above statement of Justice O'Connor,

If it is clear from the record that the Sticker was merely a sop offered to a now-disfavored minority (the record shows that this is in fact what happened), then the entire "sequence of events" cannot reasonably "communicate to those who endorse evolution that they are political outsiders" as the trial court held. Instead, it can only communicate to them that they do not yet have such an overwhelming political majority as to be able to exclude the view of the dissenters altogether from the curriculum. The fact that all available textbooks teach evolution, and that the Cobb County school board chose the most hard-line pro-evolution text, and chose to include that evolution material in the curriculum, clearly communicates to those who endorse evolution that they have become the dominant political insiders, and the Sticker merely shows that they do not have absolute monopoly control -- yet.

It is deeply disturbing that the trial court felt that failure to give the pro-evolution side absolute monopoly control was equal to sending a message to the pro-evolution side that they are "political outsiders." Nonsense. Denying someone monopoly control of an issue is not the same as declaring that person a political outsider on that issue. That the trial court could judge such a record to have such an effect bespeaks an extreme bias.

The majority opinion in Lynch v. Donnelly said (465 U.S. 668, 673),

The Court has sometimes described the Religion Clauses as erecting a "wall" between church and state . . . . The concept of a "wall" of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.

. . . . ."It has never been thought either possible or desirable to enforce a regime of total separation . . . ." Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. (some citations omitted)

Maybe the fundies have a point when they argue that the term "separation of church and state" appears nowhere in the Constitution. I have always assumed that the term is just a catch-all term covering both the establishment clause and the free exercise clause, but it might be fair to argue that the term has been misused.

The district-court opinion in the Selman v. Cobb County evolution-disclaimer textbook sticker case said (page 30),

Therefore, 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 least 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.

An easier-to-read html version of the Selman district-court opinion is here.

Unfortunately, the Selman district-court decision held that the stickers failed the second (effect) prong of the Lemon test. Also, Selman has no value as precedent because the decision was vacated and the case was then settled out of court. It is noteworthy that Judge Jones was so fond of the Selman district court opinion that the name of that case appears 15 times in the Kitzmiller opinion.

Also, it is significant that another decision that ruled against an evolution disclaimer, Freiler v. Tangipahoa Parish, came close to being overturned.