Dispatches from the Creation Wars

Dover and the Future of ID Lawsuits

Posted by Ed Brayton on December 16, 2005
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I somehow missed this article from the Chicago Tribune on December 6th, about the possible outcomes of the Dover trial and the long term impacts on the larger dispute those outcomes would be likely to have. The article notes the three possible ways the judge could rule (and the ruling is expected next week):

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…

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.

“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…

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.


Obviously, we are hoping for a broad ruling of the first type. Most observers think it’s unlikely that the judge is going to rule in favor of the school board given how badly the trial went for them (though there is never a guarantee of how a judge will rule, all of the signs from the trial itself were positive from my perspective). A narrow ruling specifically on the intent of the school board would be okay, but it would mean that this trial has to take place all over again somewhere else. Where? How about here in Michigan.

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.

Well that will certainly be interesting. There had been very little activity around the Gull Lake situation since the school board ruled ID out of science classrooms there after an eventful meeting at which I spoke. That was several months ago, so I had kind of figured that the TMLC had come to its senses and decided not to pursue what would be an obviously unwinnable case (the case in Dover is very strong; the case in Gull Lake is considerably stronger because there are multiple precedents saying that teachers do not have the right to teach what they want to teach, but only what the controlling authority sets as the curriculum. In fact, all three cases that have been filed to the contrary resulted in dismissal. The TMLC has to know that and has to know that it has very, very little chance of winning such a case. But it sure would get interesting around here if such a trial took place. Stay tuned, as they say.

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Comments

  1. #1 Tim Makinson
    December 16, 2005

    A question:

    Could the judge declare the Board’s actions illegal BOTH because they were religiously motivated AND INDEPENDENTLY because ID is inherently religious? This would appear to be the most robust decision, as it would mean that an appeal would have to rebut both forks of the decision in order to overturn it.

  2. #2 Ed Brayton
    December 16, 2005

    Tim Makinson wrote:

    Could the judge declare the Board’s actions illegal BOTH because they were religiously motivated AND INDEPENDENTLY because ID is inherently religious? This would appear to be the most robust decision, as it would mean that an appeal would have to rebut both forks of the decision in order to overturn it.

    Yes. The legal standard he will apply is called the Lemon test, which has three prongs – purpose, effect and entanglement. He can, and should in my view, rule on both purpose and effect here. A law is invalidated if it violates any one prong. There has been some talk among the Supreme Court justicies over the years of the need to revise or scrap the Lemon test, particularly the purpose clause (and I don’t think that’s unreasonable – one can pass an entirely constitutional law for a bad purpose), but it has never been overturned and is still binding precedent on the lower courts.

  3. #3 Tim Makinson
    December 17, 2005

    I would tend to be of the opinion that the purpose clause should be watered down rather than eliminated altogether. Laws passed for an unconstitutional purpose should be reviewed with a far higher level of scepticism than one with an innocent purpose. At the very least, where an unconstitutional purpose can be proved, I would prefer that the burden of proof be on the law’s defenders to prove that it does not have an unconsitutional effect.

    But then IANASCJ (I am not a Supreme Court Justice).

  4. #4 Ron Okimoto
    December 17, 2005

    The Michigan case is one that the Discovery Institute is probably working very hard to kill. These two teachers actually have an ID lesson plan that they used. It isn’t publically available, but it likely has all the worthless and dishonest ID propaganda in it. It would be the death knell for ID to have ID put on trial like that.

    Guys like West wouldn’t just be backpedaling claiming that ID is a young science they would have to come up with an explanation for why the bogus junk that they used to hawk isn’t good enough to be included in a lesson plan. Everyone has to remember that the Discovery Institute had years to put forward their ID lesson plan, but they never put up what they wanted to teach even when they claimed to be able to teach it. The reason why there was never an ID lesson plan will become very apparent if the Michigan ID lesson plan has to be defended in court.

  5. #5 Ed Brayton
    December 17, 2005

    Ron Okimoto wrote:

    The Michigan case is one that the Discovery Institute is probably working very hard to kill. These two teachers actually have an ID lesson plan that they used. It isn’t publically available, but it likely has all the worthless and dishonest ID propaganda in it. It would be the death knell for ID to have ID put on trial like that.

    Well, there are two things to consider. First, the DI continually says that they don’t favor mandating the teaching of ID, but they do support the right of teachers to do so. In that respect, it’s a case they may well support. On the other hand, what the teachers in that case were teaching was a mixture of ID and traditional young earth creationist stuff, so that will make them want to back away. But the DI has no control over the case. They tried very hard to get the Dover case to go away too, but the TMLC took the case against their wishes. The TMLC is a lot more reckless than the DI is in terms of long term strategy, which is the big reason why the two groups are at each other’s throats.