John E. "true religion" Jones III the activist judge

I posted the following comment on the Volokh Conspiracy blog:

Stewart said,

Perhaps we're conflating two different activities with the term Judicial Activism -- going beyond and opposing the text of the law. Intentionalists may not feel the former is in fact Activism. Is this where the uncertainty over the meaning of the term comes in?

Exactly. Judge John E. Jones III asserted in his written opinion in the Kitzmiller v. Dover intelligent design case that he was not an activist judge, but he said in a Dickinson College commencement speech that his Kitzmiller decision was based on his notion that the Founders believed that organized religions are not "true" religions. He said,

. . . 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."

So the Kitzmiller decision was obviously an "activist" decision because Jones crossed the line from neutrality towards religion -- the establishment clause's position -- into hostility towards religion. Regardless of whether or not intelligent design is religion, this hostility towards organized religions meant that he was prejudiced against the defendants. But because he thought that he was following the intentions of the Founders, he did not see himself as an activist judge.

The above comment has been posted for a day under a recent article on Volokh Conspiracy, a very popular blog averaging about 20,000 visits per day, yet so far no one has attempted to rebut it. No one has spoken up in defense of Judge Jones.

This post will now generate a torrent of abuse from the trolls on this blog.