Dispatches from the Creation Wars

Bullock on the Dover Ruling

Roddy Bullock, head of the ID Network of Ohio, has written a really badly reasoned attack on Judge Jones on the ARN blog. He starts with polemic on the separation of church and state that is so bad it would likely earn him a failing grade at any decent law school and continues by confusing his personal attacks on Jones’ character with actual substantive analysis of the decision. He starts by minimizing the reach of the establishment clause:

Virtually everyone agrees that Jefferson’s (and now our) metaphorical wall makes sense: the state should not entangle itself in the business of establishing churches. Of course, the First Amendment Establishment Clause of the Constitution ensured just that in plain language restraining the state from certain actions. In this sense the “wall of separation” is proper and desirable.


But of course the establishment clause did not merely forbid the government from establishing churches; the language is more broad than that, and intentionally so. There were several versions considered and rejected that would only have prevented the establishment of a “national church” or a “particular sect or denomination.” That they were rejected in favor of the much broader wording of no action “respecting an establishment of religion” clearly means that the intent was to prevent more than merely the establishment of an actual state church.

He then goes on to a remarkably shallow analysis of the way the first amendment is interpreted today:

But the “wall of separation” as practiced differs fundamentally in a way that undermines the First Amendment’s restraining character. Unlike the “shall make no law” restrictive language of the First Amendment, the “wall of separation” is prescriptive and implies something must be separated by someone.

This is nonsense. Jefferson’s metaphor does not require any action by government other than simply staying out of religious matters. It prevents the government from taking actions that establish religion, but it does not require government to do anything regarding non-governmental experssions of religion. The separation comes automatically as long as the government stays within what Jefferson argued were its few legitimate duties. But this is all very general; when he gets more specific, things really go off the track:

Particularly when extended to the realm of religious ideas in the marketplace of ideas, the separation metaphor suffers from an inherent structural flaw: the state is no longer to be restrained; the state is the separator! The state ends up on both sides of the wall, and the passive wall of separation devolves into an active wall of state-mandated segregation, the distinction being one of cause and effect: segregation being the separation for special treatment of individuals from a larger group. In the hands of the judiciary, the noble-sounding “wall of separation between church and state” has become the ignoble “wall of segregation between churches by the state” with the god-like black robes of government sorting the sheep of acceptable religious expression to one side and the goats of unacceptable religious views to the other. We like this one; we don’t like that. Done.

This is even worse nonsense. The establishment clause has nothing to do with the “marketplace of ideas” other than keeping the government out of that marketplace when it comes to religious beliefs. And if he has an example of where the establishment clause has led the government to decide which religious views are acceptable and which are not, I’d love to hear it; the only possible situation I can think of (deciding what is and is not a real religious belief for purposes of conscientious objection or RFRA judgements) involves the free exercise clause, and I highly doubt he would object to such exemptions.

The fact is that establishment clause cases deal not with which religious views are acceptable, but whether such religious views can be endorsed, supported or advanced by the government as opposed to by individuals. In the whole range of controversial establishment clause cases, from school prayer to the ten commandments cases, the issue is explicitly not whether one can engage in prayer, or whether one can express a belief in the ten commandments; of course anyone is free to pray and to advocate the truth of the ten commandments and that right is absolutely protected by the free exercise clause.

The question in those cases is not which religious beliefs may be expressed, but whether government has any business expressing them or forcing citizens to take part in such expression. Judge Roy Moore is free to advocate for the ten commandments all he wants. Indeed, he does so in books, articles and speeches every single day and no one has ever suggested that he not be allowed to do so. The question in his case had nothing to do with the government deciding whether his religious views could be expressed; it had to do with whether he could use his position as Chief Justice of the Alabama Supreme Court to put the government’s imprimatur on those beliefs by putting up a monument to those ideas to the exclusion of all other views.

And preventing such situations does not, in any way, distort the “marketplace of ideas”. Moore is completely free to advocate his beliefs in the marketplace of ideas, as he does all the time. What he cannot do is use his position as a government official to give his ideas a leg up in that marketplace by putting the weight of government behind them. Are there some close calls on what constitutes government endorsement? Sure. Do people sometimes go a bit far in reacting to any vague appearance of such endorsement? Absolutely. But none of that has anything to do with what individuals can express or with the government deciding what religious views can and cannot be expressed. In other words, they don’t have anything to do with the free exercise of religion.

Bullock then goes on to make what has become a very common argument among creationists, that evolution is just as religious as creationism. This is a laughably absurd position, but Bullock nonetheless attempts it. He writes:

There are two possible explanations for the existence of man, and both have scientific support and both have religious implications. Either we are necessarily “occurrences” of unintelligent physics and chemistry or we are the result of intelligent manipulation of physics and chemistry. Each explanation has natural, observable, scientific evidential support, and each is, in one form or another, developed as a scientific theory consonant with a religious viewpoint. Naturalistic, unintelligent “bottom up” occurrence of life, for which Darwinism is a leading example, is a central tenet of Religious Humanism and is consistent with the religious beliefs of Buddhism, Taoism, Ethical Culture and various religions of witches, pagans and Earth Religionists. Not surprisingly, the opposite viewpoint, “top down” creation by intelligent design, for which Biblical creationism is one view, is a central tenet of various theistic religions, including Christianity, Judaism, and Islam.

Complete and utter nonsense. One could just as easily say the same thing about every scientific theory. Look, I’ll do it:

There are two possible explanations for hurricanes and other weather disasters, and both have scientific support and both have religious implications. Either they are necessarily “occurrences” of unintelligent physics and chemistry or we are the result of intelligent manipulation of physics and chemistry.

There are two possible explanations for earthquakes and other natural disasters, and both have scientific support and both have religious implications. Either they are necessarily “occurrences” of unintelligent physics and chemistry or we are the result of intelligent manipulation of physics and chemistry.

There are two possible explanations for gravity, and both have scientific support and both have religious implications. Either we are necessarily “occurrences” of unintelligent physics and chemistry or they are the result of intelligent manipulation of physics and chemistry.

Indeed, we can make very similar arguments about all three of those things that the IDCs make against evolution. We could point to every mistaken prediction of where a hurricane will hit or with what severity and say, “You see? Meteorology is a theory in crisis. Meteorologists continue to cover up their failure because they’re so stuck in their materialist ways and refuse to admit that their theory is a failed explanation because it rules out intelligent action. Hurricanes are extraordinarily complex and they show purpose; they cannot form naturally. Only intelligent action could bring them about.”

See how easy that was? Here’s the reality: evolution is “naturalistic” in precisely the same manner that every other scientific theory is naturalistic. And virtually every other theory of science also clashes with someone’s religious beliefs. By Bullock’s reasoning, every single scientific theory would be a part of “religious humanism” merely by virtue of the fact that it opposes someone’s religious beliefs and is consistent with other people’s religious beliefs. But this, of course, is simply nonsense.

Scientific theories are developed and established as valid explanations without regard to whether they are “consistent with” or in conflict with anyone’s religious beliefs. The process by which they are validated takes no account whatsoever of their agreement or disagreement with anyone’s religious beliefs. The fact that some religious groups thought (and some still think) that heliocentricity was in conflict with their faith has no bearing whatsoever on the validity of heliocentricity.

Likewise, big bang cosmology. William Lane Craig says that the big bang theory supports Christian theism. Quentin Smith says the big bang theory supports atheism. Young earth creationists say the big bang theory is a hoax. None of those views on religious questions has anything at all to do with whether the big bang theory is true. And the fact that there are religious views that are either consistent with or inconsistent with the big bang theory does not mean that the big bang theory is suddenly transformed from a scientific theory to a religious belief. The same is true of evolution.

Of course, the other side of this argument is that IDC is not a scientific explanation; at very best, it is a critique of evolution. Every single ID argument is an attack on evolution. There is no ID model for the natural history of life on earth, as there is for evolution. There are no testable hypotheses that flow from such a model, thus no positive research that can be done to establish ID as a valid explanation. It is a pure god of the gaps argument, relying on the alleged failure of evolution as the very first step in every argument. This is simply not a scientific explanation.

Two scientific explanations of origins, each a tenet of sincere religious beliefs, and both important in the field of origins science.

Notice the sudden change in terminology? In the previous paragraph he was only claiming that evolution was “consonant with” some religious beliefs like religious humanism and buddhism. Now he’s claiming that evolution is a tenet of those religious beliefs. Those are very different claims. Evolution, like every single scientific theory, may be either consistent or inconsistent with a wide range of religious beliefs; that does not make it a “tenet” of those beliefs it may be consistent with. Buddhism, religious humanism, taoism and wicca were all around long before the theory of evolution came along.

All of this is part of one big dishonest argument. The only reason they claim evolution is a religious belief is so that they can claim a false equivalence between evolution and the various forms of creationism. It’s a profoundly absurd argument, and frankly I think they know that. It’s offered only for strategic purposes, despite its obvious irrationality, and it’s simply part of the larger PR campaign engaged in by the ID movement. It is disingenuousness and sophistry at its most obvious.

And now the attacks on the character of Judge Jones begin:

All judges face difficult decisions, and all judges make bad decisions. But the aftermath of the Dover litigation has shown that in this case it seems U.S. District Court Judge John E. Jones, III found a chance to push the limits of judicial restraint for a once-in-a-lifetime chance at history-making. Like a present day Clarence Darrow, he recognized the chance for media-driven immortality–the lights, the cameras, the high-powered attorneys, even Charles Darwin’s great-great-grandson was at his trial.

This is a pure ad hominem. It has nothing at all to do with the validity of his ruling, it’s purely a conclusionary attack based upon a psychological analysis of the judge that Bullock has absolutely no way of supporting. He cannot possibly know Judge Jones’ motivations for he is not inside Jones’ head. He can offer no actual evidence for his claim, merely his own speculation and supposition. And convenient supposition it is, of course; it allows Bullock to dismiss the ruling without actually bothering to make any legal arguments.

Worse yet, his suppositions actually conflict with reality:

Dispensing with subtlety or nuance, in the opinion of Kitzmiller v. Dover Area School District Judge Jones seemed determined to single-handedly win the culture war based on a set of facts suitable only for a skirmish. Knowing his scolding of a few religious folk would make him a darling to those he clearly holds in higher esteem, he took great delight in detailing the “breathtaking inanity” of the local school board.

Let’s think about this for a moment. One thing we can say with reasonable certainty is that by ruling the way he did, Judge Jones pretty much ended any chance of moving up on the Federal bench. His ruling went squarely against the positions of those who put him in his job in the first place, namely Rick Santorum and George W. Bush. Indeed, more than one ID advocate boasted before the trial ever started that this worked in their favor, that Judge Jones would not alienate his political benefactors by ruling against them because it would destroy his chance at greater glory on a higher court. Here’s the famous DaveScot quote from before the trial took place:

Judge John E. Jones on the other hand is a good old boy brought up through the conservative ranks. He was state attorney for D.A.R.E, an Assistant Scout Master with extensively involved with local and national Boy Scouts of America, political buddy of Governor Tom Ridge (who in turn is deep in George W. Bush’s circle of power), and finally was appointed by GW hisself. Senator Rick Santorum is a Pennsylvanian in the same circles (author of the “Santorum Language” that encourages schools to teach the controversy) and last but far from least, George W. Bush hisself drove a stake in the ground saying teach the controversy. Unless Judge Jones wants to cut his career off at the knees he isn’t going to rule against the wishes of his political allies.

Other ID advocates pointed to the fact that Judge Jones was a churchgoing conservative as evidence that he would rule in their favor. But the moment he ruled against them, suddenly he was transformed into a liberal “judicial activist” who was sucking up to the ACLU and beholden to liberal special interests. I find that absolutely hilarious, and all the more because of how shameless they were about changing their tune so rapidly. All of this, of course, is nothing more than convenient special pleading on their part. It’s what they have to say. It can’t be that they simply lost the arguments in court, of course; it simply must be the result of bias, nepotism and intrigue. It’s all quite silly.

And the attacks keep coming:

Judge Jones has spent the last year on the sawdust trail doing what judges rarely do: explaining and justifying. Obviously enjoying his new cult following, he assures fawners everywhere how importantly epic was his decision (while patronizing critics with a “a badly needed civics lesson”).

This is simply false. In fact, Judge Jones has rarely discussed the specifics of the case or defended his decision while speaking publicly. The badly needed civics lesson he has been delivering had to do not with the outcome of the case, but with the ignorant attacks on him, and on all judges, in the aftermath of the ruling. That civics lesson has included explaining to people like Phyllis Schlafly that judges do not, and are not supposed to, consider public opinion when making their rulings. It also includes explaining to the ignorant the notion of following higher court precedent.

To prove beyond doubt that he could not be more pure of heart, he wants us all to know that he really is religious. Really. While the record shows he thought little of his religion prior to becoming a judge or thereafter, progressive reports (from him) since the Kitzmiller opinion have built him up to practical sainthood. Doesn’t he pastor his dear Lutheran church?

Pure hogwash. In fact, Jones has spoken hardly at all about his religious faith, for the obvious reason that it has nothing to do with the validity of his ruling. The IDers, on the other hand, have spoken at great length about it, trying to paint him as a wolf in sheep’s clothing. Again, this is all part of the PR campaign. Forget about actually disputing the facts and logic of his ruling, just attack him as an atheistic glory hound and you’ll turn people against him. This is effective PR; it’s also pure demagoguery and sophistry on grand display.

The essay continues in this vein a while longer. Lots of boilerplate rhetoric, lots of unsupported psychological analysis and impugning of presumed motives, and hardly a shred of actual legal or factual analysis of the ruling. It’s almost completely substanceless. If the IDers really wanted to dispute the ruling, they should be writing what amounts to the briefs they would file if the case had been appealed. Those briefs would focus on the evidence and the legal reasoning only.

Would Bullock even consider filing a brief with the appeals court that said, “Judge Jones isn’t really a Christian, he just pretends to be one. And it’s obvious that he was just a glory hound who didn’t care about the facts of the case because he was so eager to suck up to the ACLU”? Not on your life. Such a brief would be laughed out of court; indeed, I doubt it would even be accepted by the court. Yet these are the kinds of shallow, substanceless arguments he makes in public. Why? Because what it lacks in legal validity it makes up for by being really good PR strategy; forget about facts and logic, just attack the other side as atheistic glory hounds and the ignorant rubes will jump on your bandwagon. It’s all highly dishonest and quite annoying.

Comments

  1. #1 kehrsam
    December 5, 2006

    The actual amount of legal reasoning contained in Bullock’s report is infinitesimal. What he is doing is setting up an elaborate “Stab in the Back” conspiracy, and completely reinventing law and history as a support to his thesis. Pure hack work.

    He is also drawing upon another intellectual thread, this from Appellate Judge Richard Posner. While I have tremendous admiration for Posner (particularly his legal economics approach), Brian Tamanaha has a brilliant post over at Balkinization concerning Posner’s view that higher Courts are essentially political animals. This type of thinking leads directly to the “liberal activist” theory of judging. The piece is wonderfully thought-provoking, and highly relevant to today’s intellectual battles. http://balkin.blogspot.com/2006/12/judge-posners-seductive-realism-and.html

  2. #2 SLC
    December 5, 2006

    I wouldn’t be too sure about the possible elevation of Judge Jones to a higher court. If a Democrat were elected in 2008, he/she might well consider Judge Jones, if only to stick it to the born-agains.

  3. #3 mark
    December 5, 2006

    The notion of “the marketplace of ideas” is well suited to intelligent design creationism. If you have a product and want to market it, what do you do? Hire a PR firm; exaggerate and even lie about the quality of your product; denigrate the competition; and every now and then come out with a “new, improved” version or package. And don’t forget to make commercials featuring people dressed up like scientists with wcolored water boiling away in graduated cylinders. Aim your marketing at the gullible and desperate. And if you can influence politicians, so much the better.

  4. #4 LiberPaul
    December 5, 2006

    I am not surprised to see this coming from the rleigious right folks, they live a lie, why shouldn’t they tell them to support their own ignorance!

  5. #5 noself
    December 5, 2006

    I have to say though, superficially, his views look remarkably like those held by Scalia J, ex-CJ Rehnquist. I was going to say Thomas J as well but his view that the Establishment Clause is only a Federalism Provision is just…well…out there.

  6. #6 Skemono
    December 5, 2006

    By Bullock’s reasoning, every single scientific theory would be a part of “religious humanism” merely by virtue of the fact that it opposes someone’s religious beliefs and is consistent with other people’s religious beliefs.

    I suspect that, in actuality, Bullock’s reasoning means that every single scientific theory would be a part of “religious humanism” merely by virtue of the fact that it opposes his religious beliefs, especially since he seems to lump every non-”theistic” (wouldn’t that be “atheist”?) religion together.

  7. #7 Elohite
    December 6, 2006

    The establishment clause has nothing to do with the “marketplace of ideas” other than keeping the government out of that marketplace when it comes to religious beliefs. And if he has an example of where the establishment clause has led the government to decide which religious views are acceptable and which are not, I’d love to hear it

    I think his statement can be explained if you simply posit that one of his religious beliefs is that the Government should endorse his religion. It’s still absurd but it would explain much of what he’s written here. The Government’s refusal to endorse religion then becomes the Government deciding some religious beliefs are unacceptable.

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