Dover ruling could be its own genesis #3

The final part 3 of a Chicago Tribune article on the likely ruling in the Dover (Kitzmiller, et al v. Dover School District, et al) trial (which is expected this Tuesday or Wednesday), with my comments bold andin square brackets.

Dover ruling could be its own genesis: Legal observers say the judge can take one of three paths in the intelligent design case, Chicago Tribune, Lisa Anderson, December 6, 2005 ... NEW YORK .... [Continued from part 2]

But Thompson and other ID advocates, such as the Seattle-based Discovery Institute think tank, would prefer Jones limit his decision to the purpose of the board, and not rule on the nature of ID. That would leave the constitutionality of ID in public schools unresolved and school boards still free to consider it, if at risk of Dover-like litigation and the recent ouster of ID advocates on its school board by voters. "We don't believe it would be appropriate for the judge to rule on which theory best explains human origins or the existence of complex biological systems," said Thompson, who hoped Dover might become a test case for the U.S. Supreme Court on the issue of motivation and purpose. [While it is no secret that the Discovery Institute disagrees with courts deciding what is, and what is not a scientific theory:

85 Scientists Join Together in Urging Court to Protect Academic Freedom and Not Limit Research into Intelligent Design Theory, Discovery Institute News, October 4, 2005 Harrisburg, PA - Eighty-five scientists have filed an Amicus Brief in the Kitzmiller v. Dover trial asking the Judge to "affirm the freedom of scientists to pursue scientific evidence wherever it may lead" and not limit research into the scientific theory of intelligent design. Not all the signers are proponents of intelligent design, but they do agree "that protecting the freedom to pursue scientific evidence for intelligent design stimulates the advance of scientific knowledge." .... "The advance of scientific knowledge depends on uninhibited, robust investigation seeking the best explanation," ... "Doubts as to whether a theory adequately explains the evidence should be resolved in the laboratory not in the court room. Scientists are concerned that a Court ruling limiting the nature of science would have far-reaching detrimental effects beyond the schoolhouse doors and into the laboratories and careers of many legitimate scientists."

I must say I am surprised that Thompson also believes that. However, I personally do not regard Thompson as an "ID advocate". It seems to me that he, and the Thomas More Center, are just using ID as a sacrificial pawn in their otherwise praiseworthy primary mission of "Defending the Religious Freedom of Christians". However, the plaintiffs' complaint includes that "Intelligent design is a non-scientific argument" and "intelligent design is neither scientific nor a theory in the scientific sense; it is an inherently religious argument":

Intelligent design is a non-scientific argument or assertion, made in opposition to the scientific theory of evolution, that an intelligent, supernatural actor has intervened in the history of life, and that life "owes its origin to a master intellect." The phrase "intelligent design" was first widely used in the book Of Pandas and People: The Central Question of Biological Origins and has been vigorously promoted by opponents of the scientific theory of evolution for the last fifteen years. Unlike the theory of evolution, however, intelligent design is neither scientific nor a theory in the scientific sense; it is an inherently religious argument or assertion that falls outside the realm of science.

and a lot of arguments and evidence was presented to Judge Jones for and against ID being "science", so it is hard to see how he can avoid ruling at least that ID is not "religious", and therefore it is not unconstitutional for it to be taught in schools. Indeed, this may well be the line he will take, not ruling that ID is/is not "science" (leaving that up to the processes by which scientific revolutions are won or lost), but ruling that ID is not "religion", at least not in the First Amendment sense.]

But it's unclear if the new Dover school board will appeal if the plaintiffs win. [I don't think that the plaintiffs will win, at least not in their claim that ID is religion (see above), and even if they do, it is not clear that costs will be awarded against the Dover board (see previous part 2). But if the plaintiffs lose (which I consider likely), then presumably they would appeal. Being an Australian, I not sure about the USA judicial system, but since Jones is a Federal District Court judge, presumably any appeal would be first to the US Court of Appeals and then to the Supreme Court? Presumably that is what the journalist Lisa Anderson, or her editor, means by "Dover ruling could be its own genesis"!]

Indeed, Jones could issue a narrow decision, limited to whether board members had a primarily religious, rather than secular, purpose in adopting the policy introducing ID. "I don't think it's the test case most of us would have hoped for," said attorney Valerie Munson, head of the religion and law practice group at the Philadelphia firm of Eckert Seamans. Usually, it is difficult to determine motivation or purpose, she and others noted. But in the Dover case, some members of the board made public statements about Jesus Christ and creationism, which indicated religion may have weighed more heavily in the adoption of the ID policy than their asserted purpose of encouraging critical thinking in students. If Jones decides the case on motivation, the broader questions about ID would be left to other cases in other courts. [Agreed that this is not the ideal test case for ID, there being a risk that the judge will rule against ID itself given the Dover board's mixed motives (which is no doubt why the anti-IDists seized on it):

"MARK RYLAND (DI): ...: The Discovery Institute never set out to have a school board, schools, get into this issue. We've never encouraged people to do it, we've never promoted it. We have, unfortunately, gotten sucked into it, because we have a lot of expertise in the issue, that people are interested in. When asked for our opinion, we always tell people: don't teach intelligent design. There's no curriculum developed for it, you're teachers are likely to be hostile towards it, I mean there's just all these good reasons why you should not to go down that path. If you want to do anything, you should teach the evidence for and against Darwin's theory. ... So that's the background. And what's happened in the foreground was, when it came to the Dover school district, we advised them not to institute the policy they advised. In fact, I personally went and met with them, and actually Richard [Thompson] was there the same day, and they didn't listen to me, that's fine, they can do what they want, I have no power and control over them. But from the start we just disagreed that this was a good place, a good time and place to have this battle -- which is risky, in the sense that there's a potential for rulings that this is somehow unconstitutional." (Ryland M., "Discovery Institute and Thomas More Law Center Squabble in AEI Forum," National Center for Science Education, October 23, 2005. My emphasis).

However, while some board members had religious motives, that does not mean that all did (it is after all a nine-member board), and the board's eventual policy did not have a legitimate secular purpose, i.e. let students know there were "gaps in the theory of evolution" and that there was an ID book, On Pandas and People in the school library if they wanted to learn more about an alternative. If Judge Jones does rule against the Dover board based on the religious motivation of some of its members, then presumably the board could appeal on the religious (including anti-religious) motivation of some (if not all) of the plaintiffs?]

And there will be other cases, said Thompson, who anticipates a lawsuit against Michigan's Gull Lake school board on behalf of two teachers who are asserting their rights to teach evolution in conjunction with ID. [Thompson is wrong. If ID is ruled by Judge Jones to be "religion" in the First Amendment sense, and that is upheld on appeal, then there won't be other cases. He would then have played into the Darwinists' hands by provoking a court case in respect of a school board whose motives were mixed, against the advice of the ID movement represented by the Discovery Institute (see above).]

But such a narrow decision in Dover would be disappointing, said Wesley Wildman, director of the doctoral program in science, philosophy and religion at Boston University. "They may be able to get to motivation and rule [Dover's ID policy] out on that basis, but that narrower kind of result will be totally useless to the greater debate," he said. ... [Agreed, which is why I think that Judge Jones will not make a narrow ruling just on the Dover board's policy, but will also rule broadly on the constitutionality of teaching ID. And moreover that he will rule that ID is not "religion" in terms of the First Amendment, and therefore it is not unconstitutional to teach it in science classes. But Judge Jones will not rule that ID is "science", since that is beyond the jurisdiction of courts, and he doesn't need to, except to reject (or just refuse to rule on) the plaintiffs' complaint that "intelligent design is neither scientific nor a theory in the scientific sense; it is an inherently religious argument or assertion that falls outside the realm of science".

In fact, I would not be surprised if Judge Jones is heavily influenced by Justice Scalia and Rehnquist's dissenting opinion in the Louisiana `balanced treatment' case, that "The people of [Dover, Pennsylvania], including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools":

"In sum, even if one concedes, for the sake of argument, that a majority of the Louisiana Legislature voted for the Balanced Treatment Act partly in order to foster (rather than merely eliminate discrimination against) Christian fundamentalist beliefs, our cases establish that that alone would not suffice to invalidate the Act, so long as there was a genuine secular purpose as well. We have, moreover, no adequate basis for disbelieving the secular purpose set forth in the Act itself, or for concluding that it is a sham enacted to conceal the legislators' violation of their oaths of office. I am astonished by the Court's unprecedented readiness to reach such a conclusion, which I can only attribute to an intellectual predisposition created by the facts and the legend of Scopes v. State, 154 Tenn. 105, 289 S. W. 363 (1927) -- an instinctive reaction that any governmentally imposed requirements bearing upon the teaching of evolution must be a manifestation of Christian fundamentalist repression. In this case, however, it seems to me the Court's position is the repressive one. The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that "creation science" is a body of scientific knowledge rather than revealed belief. Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation's stated purpose must be a lie. Yet that illiberal judgment, that Scopes-in-reverse, is ultimately the basis on which the Court's facile rejection of the Louisiana Legislature's purpose must rest." (Edwards v. Aguillard, 482 U.S. 578, 594 (1987). Dissenting Opinion by Justice Scalia joined by Chief Justice Rehnquist. Emphasis original)

Whatever, its sounds like we will all find out what Judge Jones' ruling is in a few more days!]

Stephen E. Jones, BSc (Biol).
"Problems of Evolution"

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"When we are inquiring simply after the existence of an intelligent Creator, imperfection, inaccuracy, liability to disorder, occasional irregularities, may subsist, in a considerable degree, without inducing any doubt into the question: just as a watch may frequently go wrong, seldom perhaps exactly right, may be faulty in some parts, defective in some, without the smallest ground of suspicion from thence arising, that it was not a watch; not made; or not made for the purpose ascribed to it. When faults are pointed out, and when a question is started concerning the skill of the artist, or the dexterity with which the work is executed ... these are different questions from the question of the artist's existence ... and the questions ought always to be kept separate in the mind. So likewise it is in the works, of nature. Irregularities and imperfections are of little or no weight in the consideration, when that consideration relates simply to the existence of a Creator. When the argument respects his attributes, they are of weight; but are then to be taken in conjunction ... with the unexceptionable evidences which we possess, of skill, power, and benevolence, displayed in other instances; which evidences may, in strength, number, and variety be such, and may so overpower apparent blemishes, as to induce us, upon the most reasonable ground, to believe, that these last ought to be referred to some cause, though we be ignorant of it, other than defect of knowledge or of benevolence in the author." (Paley W., "Natural Theology: or, Evidences of the Existence and Attributes of the Deity, Collected from the Appearances of Nature," [1802], St. Thomas Press: Houston TX, 1972, reprint, pp.41-42. Emphasis original)