Sunday, December 18, 2005

Dover ruling could be its own genesis #2

Part 2 of a Chicago Tribune article on the likely ruling in the Dover (Kitzmiller, et al v. Dover School District, et al) trial, with my comments bold andin square brackets. According to the NCSE, this will be "next week on Tuesday or Wednesday", i.e. 20 or 21 December (USA time):

Decision coming soon, December 16, 2005 We are hearing (but no official announcement yet) that Judge Jones will hand down his decision next week on Tuesday or Wednesday. We will probably get advanced warning, perhaps a day, of the decision's release, so there will probably be a press conference in Harrisburg on the day the decision comes down. ...

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 1]

Displaying notable patience, frequent flashes of dry humor and no clues to his mindset, Jones, 50, presided over the landmark case Kitzmiller et al vs. Dover Area School District. Eleven parents of Dover students sued the school board claiming that it acted with improper religious purpose to unconstitutionally introduce ID into the high school biology curriculum. The parents contend that ID, while devoid of any overt mention of the Bible or the divine, is a thinly veiled version of creationism. [Again, this is false, and in fact self-contradictory. If ID is "devoid of any overt mention of the Bible or the divine" which it is, then it is not "creationism". If the plaintiffs' complaint actually said that (and I cannot see where it does), then they have lost their case against ID being "religion" right there!]

In the 1987 case Edwards vs. Aguillard, the U.S. Supreme Court found creationism to be a religious belief and thus that it could not be taught in public schools because it violated the establishment clause of the 1st Amendment. [What the U.S. Supreme Court in the 1987 Edwards vs. Aguillard `balanced treatment' trial found "to be a religious belief and thus that it could not be taught in public schools", but `Creation-science' defined as "the scientific evidences for creation and inferences from those scientific evidences":

"Definitions As used in this Subpart, unless otherwise clearly indicated, these terms have the following meanings: (1) `Balanced treatment' means providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories in view of the textbooks and other instructional materials available for use in his classroom. (2) `Creation-science' means the scientific evidences for creation and inferences from those scientific evidences. (3) `Evolution-science' means the scientific evidences for evolution and inferences from those scientific evidences. (4) `Public schools' means public secondary and elementary schools." (Zetterberg J.P., ed., "The Louisiana Creationism Act (1981)," in "Evolution Versus Creationism: The Public Education Controversy," Oryx Press: Phoenix AZ, 1983, p.395).
[But ID says nothing about "Creation-science" or "creation", and nor does ID (and in fact neither did the Dover board) require "Balanced treatment" between "both creation and evolution models".]

Jones, a former trial lawyer elevated to the bench by President Bush in 2002, has many options for his decision, but three stand out as most likely, according to legal observers. First, he could rule broadly that ID is a religious belief, not a scientific theory. If so, the introduction of ID in a public school science class would be unconstitutional. "And that, of course, is the option we are asking the court to take," said Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania. The ACLU, along with Americans United for Separation of Church and State and the Philadelphia firm of Pepper Hamilton, represented the plaintiffs at no cost. [As I have previously said (e.g. in here and here), I consider it likely that Judge Jones will rule broadly, but unlikely that he will rule "that ID is a religious belief, not a scientific theory." BTW, the National Center for Science Education is a hidden (and perhaps the most important) player in the anti-ID side, in that their leading legal counsel Eric Rothschild is "a member of the Legal Advisory Board of the National Center for Science Education." It will be a major setback (if not a disaster), for the anti-IDist troika of the NCSE, ACLU and AUSCS, if the judge rules that ID a scientific theory, not a religious belief!]

Potential ripple effect "Legally, the opinion is only binding on Dover. Practically, it's likely to have greater effect. For example, the seminal creation science case was McClean vs. Arkansas. That case never went beyond the district court and that decision was binding only on Arkansas ... but it had tremendous effect all across the country," said Walczak. He referred to a 1982 case in which a federal court ruled that an Arkansas statute requiring public schools to give "balanced treatment for creation-science and evolution science" violated the establishment clause of the 1st Amendment. . It found legislators lacked a secular purpose and passed a law advancing a religious belief. [It was McLean vs. Arkansas Board of Education, actually. Such a blunder does not engender confidence that this journalist, Lisa Anderson, really understands the background of what she is writing about.

Agreed that a Federal judge's ruling on the constitutionality of a school board's policy would normally have nationwide ramifications. But the Dover board's policy of having a 1-minute statement advising students of the gaps in the theory of evolution, and that there are ID materials in the library which present an alternative was unique to it and it no other school district had adopted it. So unlike the 1982 Arkansas and 1987 Louisiana rulings against "creation-science", a narrow ruling against the Dover board's policy would only affect that District. Only if Judge Jones ruled broadly on the constitutionality of either: 1) teaching that there are problems with the theory of evolution; and/or 2) teaching ID in science classes (i.e. that ID is/is not science), will it have nationwide (and maybe even worldwide) ramifications. It is for that very reason that I am sure Judge Jones did not have one of the longest Federal District Court trials in recent history just to rule narrowly on a local school board's policy. He is well aware of the importance of the case, calling it "one of the most significant cases in United States history":

Local judge presides over intelligent design trial, Tide Lines Online, 4 November 2005, Mark O'Reilly and Kate Zimmerman ... Besides that case, Judge Jones was not well known for his decisions concerning the law. Until now. In his hands lies a trial that will impact the history of the theory of man's origin. Millions of students' education in science could be changed with this decision, a decision that is up to Judge Jones. He was assigned to Kitzmiller et al v. Dover Area School District through a random placement process, as are all judges. "It just so happened that I was next in line," Judge Jones said. The trial has endured over four weeks and has proven itself to be an important part of the ongoing battle between Church and State. "It certainly is one of the most significant cases in United States history," Judge Jones said. "Even Charles Darwin's great grandson is attending the trial." "It's hard to say [how this case will be remembered," Judge Jones said. "History generally gets written a long time after the fact. We'll know better in ten or 20 years. All we can do now is decided as according to the law and legal precedent and hope for the best."]

Second and equally broad in scope, Jones could affirm the constitutionality of teaching ID by supporting its validity as scientific theory and rejecting the argument that it is a religious belief, a decision the ACLU probably would appeal. [I consider this the most likely scenario, given the strength of the expert witness testimony, particularly that of Mike Behe. Remember that a lot of water has passed under the evolutionary bridge in the ~18 years since 1987. Berkeley Law Professor Phil Johnson's Darwin on Trial came out in 1991, and I am sure that Judge Jones would have read that, and realized (amongst other things) how the Darwinists have manipulated the USA's legal system to maintain a State-sanctioned monopoly on their atheistic creation story. Charles Colson was alarmed when Judge Jones said he wanted to view Inherit the Wind:

Inheriting a Myth, BreakPoint, October 25, ... The historical parallels between Kitzmiller v. Dover, the intelligent design case now being tried in Pennsylvania, and the "Scopes Monkey Trial" aren't lost on the judge hearing the case: John Jones. Jones told the Philadelphia Inquirer last weekend that he "became a judge with the hope of having an opportunity to rule in matters of great importance." That's why he looked forward to hearing this case. People who have tried cases before Jones characterized him as being "meticulously prepared," and given the attention surrounding the case, Kitzmiller is no exception. But there's one bit of preparation from which Jones should have abstained. He told the Inquirer that, as part of his preparation, he planned on re-watching the 1960 movie Inherit the Wind, a fictionalized account of the Scopes trial. While Jones admitted that he didn't know, as he put it, if seeing the film "would be helpful to the decision I have to make," he thought it "would help put things in historical context." Well, I have written the judge, telling him that just is not so.
but I am encouraged by it, since it indicates that he probably has read Johnson's myth-busting of it in Darwin on Trial.]

"If that happens, we're going to have school boards across the country trying it [introducing ID] the next day," said Charles Haynes, senior scholar and director of education programs at the First Amendment Center in Arlington, Va. [It is significant that Haynes thinks there are many school boards across the country who would like to introduce ID as an alternative to (not a replacement of) evolution, but are prevented from doing so by the fear of a crippling lawsuit by the ACLU!]

In the last 12 months, more than two dozen state legislatures and school boards have considered introducing ID in science curricula, according to the National Center for Science Education, a non-profit organization dedicated to defending the teaching of evolution in public schools. Many are watching the Dover case, not least because, if the school board loses, the district may have to pay more than $1 million in plaintiffs' court fees. [If Pepper Hamilton, represented the plaintiffs at no cost. then why should the Dover board have to pay plaintiffs' court fees if it loses? But if the NCSE and its ilk think that the Dover board should pay costs if it loses, then if Judge Jones rules in favour of the board's policy and/or ID as science (which I predict he will do), then they should not object if the judge orders plaintiffs to pay the Dover board's court costs!]

Such a decision favoring the defense would delight Richard Thompson, president and chief counsel of the Thomas More Law Center, a Christian-oriented firm in Ann Arbor, Mich., which defended the Dover school board at no charge. "The ideal decision would be that the court would find the ... policy of the Dover school board does not violate the establishment clause and the theory of intelligent design is a credible scientific theory which can be mentioned in science classes," he said. [In fact I think that will be what the judge will rule, although he may distinguish between the Dover board's policy having a secular purpose and the motivation of some members of the Dover board being religious (but see part 3 on the difficulty of determining motivation).]

[To be continued in part 3]

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

"THE generation of the animal no more accounts for the contrivance of the eye or ear, than, upon the supposition stated in a preceding chapters the production of a watch by the motion and mechanism of a former watch, would account for the skill and intention evidenced in the watch so produced; than it would account for the disposition of the wheels, the catching of their teeth, the relation of the several parts of the works to one another and to their common end, for the suitableness of their forms and places to their offices, for their connections their operation, and the useful result of that operation. I do insist most strenuously upon the correctness of this comparison; that it holds as to every mode of specific propagation; and that whatever was true of the watch, under the hypothesis above mentioned is true of plants and animals. ... To begin with the fructification of plants. Can it be doubted but that the seed contains a particular organization? Whether a latent plantule with the means of temporary nutrition, or whatever else it be, it incloses an organization suited to the germination of a new plant. Has the plant which produced the seed any thing more to do with that organization, than the watch would have had to do with the structure of the watch which was produced in the course of its mechanical movement? I mean, Has it any; thing at all to do with the contrivance? The maker and contriver of one watch, when he inserted within it a mechanism suited to the production of another watch, was in truth, the maker and contriver of that other watch. All the properties of the new watch were to be referred to his agency: the design manifested in it, to his intention: the art, to him as the artist: the collocation of each part, to his placing: the action, effect, and use, to his counsel, intelligence, and workmanship. In producing it by the intervention of a former watch, he was only working by one set of tools instead of another: So it is with the plant, and the seed produced by it. Can any distinction be assigned between the two cases; between the producing watch, and the producing plant? both passive; unconscious substances; both, by the organization which was given to them, producing their like, without understanding or design; both, that is, instruments." (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.36-37)

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