Dispatches from the Creation Wars

You know, when the DI claimed to be funding super-secret research that they couldn’t tell us about, I knew that it couldn’t mean actual scientific research. But I didn’t realize what they were really funding were “studies” like this one, which purports to prove that Judge Jones….well, it doesn’t really say what it purports to prove. They compare one particular section of Jones’ ruling, the section on whether ID is science, to the plaintiffs’ Proposed Findings of Fact (PFOF) and claim (falsely, as I will show) that 90.9% of it was taken “from wording supplied by ACLU attorneys.”

Let’s start breaking down this laughable claim. First, as I’ve already noted, this is not at all unusual. Judges request such briefs be filed precisely so this can be done. Sometimes they will take an argument verbatim, sometimes they’ll paraphrase it; what matters is that they are deciding which side has the better argument, putting that argument in its proper place in the ruling and endorsing its validity. Curiously, the DI’s press release admits this:

Proposed “findings of fact” are prepared to assist judges in writing their opinions, and judges are certainly allowed to draw on them. Indeed, judges routinely invite lawyers to propose findings of fact in order to verify what the lawyers believe to be the key factual issues in the case. Thus, in legal circles Judge Jones’ use of the ACLU’s proposed “Findings of Fact and Conclusions of Law” would not be considered “plagiarism” nor a violation of judicial ethics.

Nonetheless, the extent to which Judge Jones simply copied the language submitted to him by the ACLU is stunning. For all practical purposes, Jones allowed ACLU attorneys to write nearly the entire section of his opinion analyzing whether intelligent design is science. As a result, this central part of Judge Jones’ ruling reflected essentially no original deliberative activity or independent examination of the record on Jones’ part. The revelation that Judge Jones in effect “dragged and dropped” large sections of the ACLU’s “Findings of Fact” into his opinion, errors and all, calls into serious question whether Jones exercised the kind of independent analysis that would make his “broad, stinging rebuke” of intelligent design appropriate.

But there are numerous problems with this argument. First, they never say what extent would be acceptable to them. They admit that it is normal procedure for judges to request such findings and to use the ones they find compelling, either verbatim or paraphrased slightly, in a ruling. So if that’s a perfectly acceptable procedure, and perfectly normal in judicial rulings (and it is, by their own admission), why does it suddenly become unacceptable and abnormal if it goes over some unspecified percentage of the text? They make no attempt to provide any such criteria.

Secondly, they rely upon a faulty analysis to come up with a fraudulent figure of 90.9%. Here’s how they say they came up with that number:

This percentage was calculated by using MS Word’s “Word Count” function to determine the word count for all of the sections of the Kitzmiller decision that were taken verbatim or nearly verbatim from the ACLU’s proposed “Findings of Fact and Conclusions of Law.” The resulting number (5,458) was then divided by the total number of words in the section on “Whether ID is science” (6,004; this number was also determined by MS Word’s “Word Count” function).

As Sandefur noted, the phrase “nearly verbatim” is meaningless; a phrase is either verbatim or it is not. And this becomes very important as you look at the chart they provide comparing phrases and what they consider “nearly verbatim.” They provide a table of quotes from the ruling compared to quotes from the PFOF, and apply a purely subjective standard – if it looks “nearly verbatim” to them, then it was – and then merely divided that by the number of words in that section of the ruling.

But if you look at many of the examples, they aren’t all that close at all. In many cases, what they pick out as “nearly verbatim” is the entire argument. But there are only so many ways to state an argument, and any of them would likely have triggered their subjective categorization. For instance, compare this statement from the ruling:

ID proponents primarily argue for design through negative arguments against evolution, as illustrated by Professor Behe’s argument that “irreducibly complex” systems cannot be produced through Darwinian, or any natural, mechanisms.

With that in the PFOF:

Intelligent design proponents primarily argue for design through negative argument against evolution,
including Professor Behe’ s argument that “irreducibly complex” systems cannot be produced through Darwinian, or any natural, mechanisms.

Yes, they’re similar statements. But is there some way of phrasing this argument – which is incontrovertibly true, by the way – that would not be “nearly verbatim”? I can’t think of any. It’s an accurate statement of Behe’s argument and an accurate statement about the negative nature of ID arguments. Must the judge pull out a thesaurus and try to find a unique way to say it? Or should the judge state the argument as he did here, in the same simple and accurate manner that he did?

Let’s take another example. Here’s the text from the ruling:

ID is at bottom premised upon a false dichotomy, namely, that to the extent evolutionary theory is
discredited, ID is confirmed… We do not find this false dichotomy any more availing to justify ID today than it was to justify creation science two decades ago.

And here’s the text from the PFOF:

Intelligent design is premised on a false dichotomy, namely, that to the extent evolutionary theory is
discredited, intelligent design is confirmed….This argument is no more availing to justify intelligent design today than it was to justify creation science two decades ago.

Now let’s look at all of the obviously factual statements in both paragraphs:

1. ID is, in fact, premised on that false dichotomy.
2. The same false dichotomy was used to justify creation science
3. That justification was used in the controlling precedent for this case
4. That case was nearly two decades ago

So how many different ways are there to say it? Not many. They don’t dispute that any of it is true, of course; they couldn’t possibly. In light of that, their argument really collapses down to “the judge didn’t invent a whole new way of saying this; therefore”…well, again, they don’t really say. Somehow it “undermines” the validity of his ruling because he didn’t bother to invent entirely new ways of making admittedly accurate statements. Pretty silly, isn’t it?

They also claim that Judge Jones’ ruling copied “ACLU errors” from the PFOF. A brief look at some of those “errors” reveals that what their argument really means is that he didn’t buy the ID side’s arguments on various matters, and for good reason. For example, here’s a statement from the ruling, similar to a statement in the PFOF, that the DI says is an “error”:

In addition to failing to produce papers in peer-reviewed journals, ID also features no scientific research or testing.

And here’s why they say it’s an error:

Microbiologist Scott Minnich testified in court showing slides of the genetic knock-out experiments he performed in his own laboratory at the University of Idaho which found that the bacterial flagellum is irreducibly complex with respect to its complement of 35 genes. Judge Jones failed to mention any of Minnich’s experimental data supporting the irreducible complexity of the flagellum.

But this does not address Jones’ claim, because Minnich also admitted in his testimony that irreducible complexity was not a test of ID at all but was a test of evolution. He proposed a possible test of seeing if you could take a bacteria that had a portion of the flagellum known as the Type III Secretory System (TTSS) and see if he could get it to develop a flagellum. He admitted that neither he nor Behe had done it, and said that he might try it. This, he said, could be a means of testing and falsifying the concept of irreducible complexity.

Now, there are several major problems with this claim. First of all, if the experiment failed to produce a flagellum, it simply would not mean that flagella could not have developed naturally. Why? Because no experiment could replicate either the number of sequential trials that went on in nature (the number of bacteria in the world is staggeringly huge) or the amount of time it may have taken for the flagella to develop (bacteria, after all, have been on earth for nearly 4 billion years). You could do a 10 year experiment with a few billion bacteria and if they failed to develop a flagellum, that would say virtually nothing about how likely it is that one could develop given the vast amounts of genetic variation and time available in the real world.

Secondly, he is flat wrong when he says that if a flagellum did develop in such an experiment that it would falsify irreducible complexity. If one did develop, they would immediately make two arguments: A) that the experiment only proves that an intelligent force (in this case, the scientist doing the experiment) had to guide the process in order for a flagellum to develop; and B) that the information for the development of the flagellum may have been “front loaded” by God, so no wonder we can induce it to develop.

Lastly, Minnich even admits under cross examination that if such a test were performed, it would not be a test of either irreducible complexity or or intelligent design in general, but would only be a test of evolution. Thus, the DI’s argument simply does not show that Jones’ statement is in error. Even their hypothetical examples of what ID research might look like would not, in fact, provide positive evidence for ID at all but just more negative arguments against evolution (and even then, they would still make the excuses noted above for why it doesn’t really count. That’s the beauty of invoking an unnamed and undefined designer than did something at some point to make life possible; it simply cannot be falsified).

Here’s another example of an alleged error in the ruling:

ID is not supported by any peer-reviewed research, data or publications.

And here is their argument as to why it’s an error:

Expert witness Scott Minnich testified at trial that there were between “seven and ten” peer-reviewed papers supporting ID, and he discussed a pro-intelligent design article in the peer-reviewed biology journal, Proceedings of the Biological Society of Washington. Additional peerreviewed publications were listed in an
annotated bibliography submitted in an amicus brief accepted as part of the official court record by Judge Jones.

This objection amounts to “but we said otherwise and he didn’t believe us.” Well guess what? There’s a good reason why he didn’t believe you. Let’s look at what Minnich actually said about this peer-reviewed research:

I think yesterday there was, as I mentioned, there were around, between, I don’t know, seven and ten. I don’t have the specific ones. But Dr. Axe published one or two papers in the journal Biological Chemistry that were specifically addressing concepts within intelligent design. Mike Behe had one. Steve Meyer has had one.

Ah yes, the Axe papers, and Behe and Snoke paper. Yes, Minnich did mention them. Does that mean that those are indeed examples peer-reviewed research that supports ID? Not even close. In fact, those papers were discussed during the trial and completely debunked. The Axe papers in no way support intelligent design, nor do they claim to. In fact, Axe’s studies on perturbation rates in enzymes actually cuts against the notion of irreducible complexity because it shows that you have to knock out an immense number of amino acids in order to destroy all enzyme function.

The Behe and Snoke paper was discussed at great length when Behe was cross-examined during the trial. Not only was he forced to admit that this paper did not support ID, he had to admit that, in reality, it showed that a multi-residue binding site, by his own admission irreducibly complex, could evolve without intelligent intervention even if the parameters of the experiment were deliberately rigged to make it as unlikely as possible (see this post, with the full text of the cross-examination; this was an absolutely devestating indictment of what ID advocates consider pro-ID “research”).

The Meyer paper in the Proceedings of the Biological Society of Washington was nothing but a review of anti-evolution arguments. It contained no research whatsoever, nor did it even attempt to propose an ID explanation. It was nothing but a rehash of the same anti-evolution arguments we’ve been hearing for decades from creationists of every type. Its existence if utterly irrelevant to the statement the judge made in his ruling. Finally, we have the admission of Behe himself under cross examination that there was no actual research that had confirmed ID:

Q. And, in fact, there are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred, is that correct?

A. That is correct, yes.

So while the DI keeps repeating this false canard that there is actual research that confirms or supports ID by putting out lists and bibliographies, when you actually look at the papers they list you find out that they don’t support ID at all. Some, in fact, strongly argue against it, including research by their own advocates. And many of those papers were examined in detail under cross examination during the trial and shown not to support ID at all. Thus, the judge’s statement that there was no peer-reviewed research that supports ID is entirely validated by the facts in the trial record.

Here’s another example of an “error” that they claim Judge Jones simply took from the plaintiffs’ brief. On the issue of whether ID requires a supernatural designer, the ruling says:

ID is predicated on supernatural causation… ID takes a natural phenomenon and, instead of accepting or seeking a natural explanation, argues that the explanation is supernatural.

And here’s their argument for why this is an error:

Both Michael Behe and Scott Minnich testified otherwise at trial, and the court accepted an amicus brief providing detailed documentation of the view of intelligent design proponents that intelligent design is not predicated on supernatural causation.

This argument comes down to “But we said this wasn’t true! How can he say it is when we said it wasn’t?” Well, because the evidence, much of it from your own DI fellows, proves otherwise. The DI has been denying that the designer had to be supernatural, but their own definition of ID demands a designer who is outside of our universe because he/she/it had to create the universe. What else could that designer be called other than supernatural? We have statements on the record from, for example, William Dembski:

“The fine-tuning of the universe, about which cosmologists make such a to-do, is both complex and specified and readily yields design. So too, Michael Behe’s irreducibly complex biochemical systems readily yield design. The complexity-specification criterion demonstrates that design pervades cosmology and biology. Moreover, it is a transcendent design, not reducible to the physical world. Indeed, no intelligent agent who is strictly physical could have presided over the origin of the universe or the origin of life.”

If “transcendent” and “not reducible to the physical world” doesn’t mean “supernatural”, then that word has no meaning. Dembski has also stated that the standard ID argument that the “designer” might just be super-intelligent aliens is false because those aliens would also require a designer:

Intelligent design, as a scientific research program, attempts to determine whether certain features of the natural world exhibit signs of having been designed by an intelligence. Whether this intelligence is ET or a telic principle immanent in nature or a transcendent personal agent are all, at least initially, live options. The problem with ET, of course, is that it implies a regress — where did ET come from? The same question doesn’t apply, at least not in the same way, to telic principles or transcendent personal agents because the terms of the explanation are different. ET is an embodied intelligence, and that embodiment itself needs explanation.

We also have the fact that ID advocates rant endlessly about the need to overthrow “naturalism” and how ID is all about destroying naturalism. Well if ID is going to overthrow naturalism, it cannot possibly do so by positing a designer than is, itself, natural. The judge also cites the fact that Steve Fuller, a witness for the defense, said in his expert report that, “ID’s rejection of naturalism and commitment to supernaturalism does not make it unscientific.”

Furthermore, we have the clear statement in the very book that was used in Dover, Of Pandas and People, which was cited by Judge Jones:

Darwinists object to the view of intelligent design because it does not give a natural cause explanation of how the various forms of life started in the first place. Intelligent design means that various forms of life began abruptly, through an intelligent agency, with their distinctive features already intact – fish with fins and scales, birds with feathers, beaks, and wings, etc.

I don’t care how many times the IDers jump up and down and say that the designer doesn’t necessarily have to be supernatural, their own definitions, their own anti-naturalism rhetoric and their own previous statements incontrovertibly proves otherwise. There is one and only one reason why they continue to try and prop up this fiction that the designer could be natural, and that’s because they need that fiction to get around the notion that ID is an inherently religious idea. It’s a sham and a transparently obvious one at that.

Lastly, let’s note that the ID side also wrote their Proposed Findings of Fact briefs in the hope that the judge would agree with them and use them verbatim. That’s why they worded them as they did, in the voice of the court. For instance, their brief says, “As an initial matter, this Court finds that certain plaintiffs lack standing to advance a claim.” And that is how it words every legal conclusion, like this:

The Court finds that the Plaintiffs have failed to prove that the primary purpose of the curriculum change adopted by the DASD on October 18, 2004, was to advance religion.

Why is it worded that way? Because if the judge agrees with it, he can simply take that wording and use it in his ruling, or perhaps modify it just slightly. PFOFs are written in the voice of the court for precisely this reason. Do you suppose that if the ruling had gone the other way and Judge Jones had taken the above quote and used it in his ruling, we’d be hearing about how this undermines the validity of his ruling? I’d say the odds of that lay well beyond Dembski’s universal probability boundary.

This is nothng more than disingenuous special pleading by the DI. Despite the fact that they keep saying that the Dover ruling is no big deal for the ID movement, they are absolutely desperate to knock it down. They’ve spent the past year throwing every bit of muck and mud at it that they can find in the hope that some of it will stick. This latest attempt, frankly, is their most pathetic yet.

P.S. The best answer I’ve seen so far to this nonsense came from Vic Walczak, legal director for the Pennsylvania ACLU, in the York Daily Record:

An ACLU official calls the Institute’s report a stunt.

“They’re getting no traction in the scientific world so they’re trying to do something … as a PR stunt to get attention,” said Witold Walczak, legal director for the ACLU of Pennsylvania and the ACLU’s lead attorney on the case.

“That’s not how scientists work,” he said. “Discovery Institute is trying to litigate a year-old case in the media.”

Walczak said the Discovery Institute staff is not, as it claims, interested in finding scientific truths; it is more interested in a “cultural war,” pushing for intelligent design and publicly criticizing a judge.

“Why don’t these guys go back to their ‘labs,’ and do something meaningful?” Walczak asked. “Oh, wait. They don’t have labs. Silly me.”

Bingo. They don’t have any science. PR stunts are all they have to offer.

Comments

  1. #1 CThomas
    December 13, 2006

    Interesting discussion, Ed. I think some of your points, including your methodological point and some of the substantive responses, are good ones. Others seem to me to be a real stretch. The “how many different ways are there to say this” claims seem particularly weak, to be honest. The answer is, lots. Moroever, if one were writing any of those claims independently, just surveying the record evidence and coming to the conclusion, the odds that it would be phrased that way in particular just are tiny. You can argue that choosing to copy the sections in question isn’t problematic (and you do make that argument), but to the extent you try to go one step farther and argue that there’s only one way to make the point, it strikes me as, to put it mildly, a real stretch. I’m surprised you would choose to make that argument. (Also, “nearly verbatim” is not at all meaningless; there can be slight syntactical changes that prevent copying from being “verbatim,” yet the texts can be so similar that “nearly verbatim” would be a perfectly apt description of the similarity. Really, in any other context would you complain about that formulation as “meaningless” in describing two texts with very slight differences between them? We’ve all seen high-profile plagiarism in recent years documented by exactly this sort of juxtaposition of similar passages, and we would think poorly of someone who attempted to deny the plagiarism on the ground that there were trivial differences and anything short of total verbatim reproduction is “meaningless.”)

    One other point I wanted to make. To do an evenhanded, dispassionate survey of the points made in that paper, you’d want to at least tackle the lead argument. I have not read that full paper, but just skimming the early pages, it looked like the lead example had to do with the claim that one of the alleged instances of copying had to do with a cite to Behe testimony that quoted the words “not enough” in what the paper claimed to be a seriously misleading way. To the casual reader of the paper, that example jumps out as the most dramatic charge — that the judge reproduced an alleged mischaracterization of him saying “not enough” when he really said “I’m not saying it’s not enough” or something like that. I don’t object to your looking only at some of the examples from the paper — you don’t have to catalogue every instance — but to discuss the paper’s claims in a fair way, I think you should either grapple with the lead example of an instance of copying that allegedly reproduced a substantive error, or else, if it is a valid point, candidly admit that some of the examples cited in the paper are valid but that you think others are wrong. Otherwise, it starts to look like a piece of advocacy (one that does make some fair points, as I noted above, but advocacy nonetheless) rather than an effort to really assess the thing on its merits without bringing in preexisting hostilities (whether justified or unjustified) against this organization making the claims.

  2. #2 John Lynch
    December 13, 2006

    Nice work, Ed.

  3. #3 Daniel Morgan
    December 13, 2006

    Note that Colin Thomas doesn’t respond to whether or not the whole “judges shouldn’t/don’t usually copy from the side whose PFOF their ruling agrees with” premise of their “study” is worth a turd in a shoebox.

    Because it’s simply not. And he knows it. The fact that judges do this often, and that it makes perfect sense for them to do so, should be ignored…at all costs of reasonability.

  4. #4 Cthomas
    December 13, 2006

    I just want to be clear that my name is not Colin Thomas, and in fact I don’t know who that is. I want to dispel any confusion.

    I didn’t address any number of things Ed said, in part because I think some of them seem to have merit, as I said. It’s not “everything is perfect” or “the entire thing is garbage.” The propriety of wholesale copying by judges of parties’ proposed findings is not a slam dunk one way or the other, and judicial decisions and legal academics have discussed the issue at length. To be honest, I thought Ed oversold the point a bit, but I didn’t want to dwell on that point.

    Regards.

  5. #5 Daniel Morgan
    December 13, 2006

    Cthomas,

    I apologize. Colin Thomas writes for the DI, and I assumed you were him.

    I suppose the question here is — does the DI discuss the propriety and/or ethics of the general practice? No. They hone in on Jones as if he’s done something remarkable…”stunning” in their words, when in point of fact, he has done nothing “stunning” or remarkable.

    They’re just desperate. And it shows. Again, sorry I took the liberty of assuming you were someone you weren’t.

  6. #6 CThomas
    December 13, 2006

    Thanks. No problem.

  7. #7 Ed Brayton
    December 13, 2006

    CThomas wrote:

    The “how many different ways are there to say this” claims seem particularly weak, to be honest. The answer is, lots. Moroever, if one were writing any of those claims independently, just surveying the record evidence and coming to the conclusion, the odds that it would be phrased that way in particular just are tiny.

    Except that, as I demonstrated, they cited many things as “nearly verbatim” that really couldn’t be phrased a whole lot of different ways without just pulling out a thesaurus. And is anyone other than the clowns at the DI going to argue that the difference between a valid ruling and an invalid one how often the judge rewrites the findings of fact? If you’ve got the argument clearly and well stated right in front of you and that statement is supported by the evidence in the trial record, why should you try and find a way to phrase the same argument differently? The “study” even cites as a problematic “verbatim” copy when the judge and the brief used the same quote from someone else. Was he supposed to reword the NAS’ definition of science as well? It simply makes no sense. And again, the reason that no one in the last year has said a word about this is because, to anyone with even a modicum of knowledge of civil procedure, it’s absolutely a non-story. These briefs are filed and written the way they are precisely for that reason.

    (Also, “nearly verbatim” is not at all meaningless; there can be slight syntactical changes that prevent copying from being “verbatim,” yet the texts can be so similar that “nearly verbatim” would be a perfectly apt description of the similarity. Really, in any other context would you complain about that formulation as “meaningless” in describing two texts with very slight differences between them? We’ve all seen high-profile plagiarism in recent years documented by exactly this sort of juxtaposition of similar passages, and we would think poorly of someone who attempted to deny the plagiarism on the ground that there were trivial differences and anything short of total verbatim reproduction is “meaningless.”)

    I would argue that the fact that most of the text in that section is not verbatim but only “nearly” verbatim shows that Judge Jones was not merely cutting and pasting, he was in fact carefully considering how things should be worded and changing the wording where appropriate (and not just for voice and tense). And remember, he only did this in one section, about 13% of the entire ruling, and that section was the one where a slight misstatement could seriously change the meaning (in science, the details matter a great deal). The problem with combining “verbatim” with “nearly verbatim”, without any actual standard to determine what “near verbatim” is other than their own subjective sense of “gee, that’s really close” is that it allows them to pretend that he merely cut and pasted everything and that is clearly not true. And so much of what they’re calling verbatim or near verbatim is just the simple recounting of facts that include key phrases that can’t be changed. For instance, take a statement like “Both Behe and Minnich testified repeatedly that the key signature of design was the ‘purposeful arrangement of parts.’” According to the DI “study” (I’m sorry, I’m going to keep putting quotes around this; these people really think that using the word count function on a word processor is doing a “study”), that’s evidence of laziness. But tell me, how could he possibly have worded it that would be equally clear and that would not be viewed through their subjective lens as “nearly verbatim”? The fact (pun intended) is that a large portion of the court’s findings of fact are always going to be just a dry recitation of simple descriptions of what the evidence says. And the notion that the judge has to rewrite every sentence to make sure it looks original is simply absurd.

    One other point I wanted to make. To do an evenhanded, dispassionate survey of the points made in that paper, you’d want to at least tackle the lead argument. I have not read that full paper, but just skimming the early pages, it looked like the lead example had to do with the claim that one of the alleged instances of copying had to do with a cite to Behe testimony that quoted the words “not enough” in what the paper claimed to be a seriously misleading way. To the casual reader of the paper, that example jumps out as the most dramatic charge — that the judge reproduced an alleged mischaracterization of him saying “not enough” when he really said “I’m not saying it’s not enough” or something like that.

    The example that you cite is actually trivially easy to debunk; all one has to do is look at the transcript and see the context of what was quoted there. Eric Rothschild had presented dozens of books and articles that all addressed various aspects of the evolution of the immune system; Behe, without having read almost any of them, immediately dismissed them as inadequate. Eric then paraphrased what he said as, “So they’re not good enough, eh?” (not an exact quote, I am paraphrasing myself). Behe’s rather disingenuous answer was that it wasn’t that they weren’t “good enough”, it’s that they do not address the issue of immune system evolution (that was false, of course; every single one of them does address the evolution of the immune system, including making testable and now-verified predictions based upon the now-accepted explanation for how that particular feature evolved). But all “not good enough” means in Eric’s question is “not good enough to show that the immune system evolved”, and despite the fact that Behe’s statement denied that to be true, it clearly does represent exactly what Behe thinks – that those articles are not good enough to show that the immune system evolved. There are really only two choices here: either Behe doesn’t believe those articles are good enough to demonstrate how the immune system likely evolved (in which case the statement in the ruling is absolutely accurate), or Behe does believe that they are good enough to demonstrated how the immune system likely evolved (in which case we should expect that entire section to be removed from all future printings of his book and from all ID materials in the future). Since the latter is not going to happen, that can only mean that the statement in the ruling is accurate and does reflect what Behe actually believes – that those books and articles just aren’t good enough for him.

  8. #8 Ben L
    December 13, 2006

    …determine the word count for all of the sections of the Kitzmiller decision that were taken verbatim or nearly verbatim…. The resulting number (5,458) was then divided by the total number of words in the section on “Whether ID is science”…

    Is this just badly phrased? It looks to me like they took the word count of verbatim from the entire document and divided it by the count of just one section. Were the relevent passages only in that section?

  9. #9 mark
    December 13, 2006

    Ed, your link is to yesterday’s York Dispatch (the afternoon paper) which cited Witold Walczak. This morning’s York Daily Record had a number of quotes from local attorneys, who were not impressed with John West’s opinions. (One said “Any judge who is efficient and well-versed in the law takes advantage of the findings of fact. It’s par for the course. Any attempt to make a stink out of it is absurd.”

  10. #10 CThomas
    December 13, 2006

    Thanks for the response, Ed. I don’t want to go back and forth too much but I’ll take one more shot at each of the two points. On the first, you say you “demonstrated” that various points could not have been phrased in a way that was not nearly verbatim. Again, this really surprises me. Take the first example you use in your main post: “ID proponents primarily argue for design through negative arguments against evolution, as illustrated by Professor Behe’s argument that “irreducibly complex” systems cannot be produced through Darwinian, or any natural, mechanisms.” You say there that you “can’t think of any” way to make the same point without it being nearly verbatim. I’m happy to give one arbitrary example, and I’m sure we could come up with countless others if we were so inclined. How about: “One of Professor Behe’s primary arguments rests upon his idea of ‘irreducible complexity,’ which he defines as characterizing an integrated system that loses its functionality when any component is removed. Professor Behe uses the idea of ‘irreducible complexity’ to infer design; but this argument only works if Professor Behe is correct that blind, natural mechanisms cannot produce ‘irreducibly complex’ systems. This assumption boils down to a purely negative attack upon the adequacy of Darwinian mechanisms rather than affirmative evidence for design. Many of the primary arguments of intelligent design proponents ultimately boil down to similarly ‘negative’ arguments arguments against Darwinian evolution rather than affirmative arguments for design.” I’m sure that’s wordy and can be improved, and I’m also sure I’ve introduced errors because I’m no expert in this area. But obviously there are countless ways of making the same point, using the Behe “irreducible complexity” argument as the example, without creating a nearly verbatim replica of the proposed findings. Again — this point has nothing to do with wheether the copying is a bad thing or not. It just goes to your claim that it couldn’t have been written some other way. Clearly it could be written countless other ways.

    On the second point, the “not enough” quotation issue, I understand your argument, but I still think it’s a fair point that the quoation “not enough” is a poor one. It’s careless to quote the words “not enough” out of “I’m not saying it’s not enough,” even if the gist of the testimony supports the basic point being made in another way. It was sloppy of the proposed findings to use the quotation in that way, and I think it’s a bit of an embarrassment for the judge to have lifted that particular quote. If the judge had been careful and checked it against the testimony, I doubt he would have chosen to quote those words in that way. So even if the Behe testimony might have amounted to the same thing if correctly quoted, I think it should have been quoted differently. Do you really disagree?

    Regards, and I should note that I did enjoy reading your piece.

  11. #11 trilobite
    December 13, 2006

    That was a good exposition of how PFOF are used. I’ll add that the judge’s decision to use so many verbatim passages is not merely a matter of convenience –though those who would sneer at that factor should consider just what a bear this case must have been to manage. Most federal court cases do NOT take weeks at trial; every day of trial is a day the judge is not handling his myriad administrative tasks in all other cases; and if trial took weeks, then pre-trial took months. The Doverites were probably not easy litigants to work with, either.

    But I digress. Point is, the judge was making a point, which is that the Dover PFOF and evidence was garbage. By virtually adopting one side’s PFOF, the judge was sending a very clear signal that the competing “facts” were non-factual. Not just that on the whole, he thought the balance of the evidence was with one side, but that this was an easy case.

  12. #12 trilobite
    December 13, 2006

    BTW, on the trivial issue of whether the passages quoted were meaningfully “near-verbatim,” I agree 100% with CThomas. The substitution of “as illustrated by” for “including” shows the judge actually read and understood that passage, but the two paragraphs are still practically the same, and there are dozens of other ways to make the same point. And changing “This argument is no[t]” to “We do not find” does not change the meaning, it just puts the point in the form of a finding of fact by the court. Near-verbatim is a perfectly reasonable way to characterize these uses.

    Actually, your attempt to argue that the PFOF was not nearly duplicated rather undercuts your other points that it is not unusual or bad to duplicate a PFOF and that the PFOF was proved to be correct.

  13. #13 Joe McFaul
    December 13, 2006

    “there are dozens of other ways to make the same point.”

    Comments like these miss the entire point. Judges do not have the time to, essentially, re-invent the wheel. If the attorneys like me are doing their jobs well, they will anticipate the judge’s findings accurately and submit a well written work product that requires few or no changes.

    Of ocurse, as a senior attorney, I don’t actually write the briefs that I sign either. My associate does. I read it and re-write it only if it needs correction. The better my associate anticipates my writing style and opinions, the better his/her job performance will be. I have very good associates and they do a very good job writing legal briefs for my signature.

    Any person in an executive capacity operates by having staff work prepared for that persons’ final review. The better the staff work, the fewer revisions there will be. Judges are no different. There is nothing sinsister about Judge Jones’ opoinion and the the DI knows it. As I pointed out in my own comments, the Thomas More Law Center isn’t complaining–they know that the Judge’s decision was routine practice.

    Going to the heart of the matter, this post is magnificant. It was a great labor to track down all the claimed “factual errors I admit I didn’t have the energy to do it. I skimmed the DI artice to determine that the claimed factual errors were not errors at all. The judge merely resolved the facts agsainst the defendants.

  14. #14 MarkP
    December 13, 2006

    It is amazing how much of the DI’s argument boils down to “We said it, therefore it is true.” If Behe testified to being a vegetarian, only to answer in the affirmative when asked “Do you consume steak on a regular basis?”, the DI would no doubt have us ignore his contradictions and count him as a vegan.

  15. #15 Wesley R. Elsberry
    December 13, 2006

    So even if the Behe testimony might have amounted to the same thing if correctly quoted, I think it should have been quoted differently. Do you really disagree?

    Is equivocation by Behe privileged?

  16. #16 Ed Brayton
    December 13, 2006

    CThomas:

    Perhaps I worded it badly, but I’m afraid we’re talking past one another. My point was really two fold:

    1. It would be difficult to rewrite those statements of fact sufficently to avoid having the DI say that they were “nearly verbatim”, since there is no standard to determine what is “nearly verbatim” and what is not.

    2. That there is no reason to try and reword every sentence to avoid having them make that claim.

    Rewording doesn’t change the arguments or the statements at all, so what’s the point of doing it? This was an immensely complex trial. The defense’s proposed findings of fact included over 800 separate arguments, for crying out loud. The ruling was 139 pages long and incredibly detailed. That he did not bother to completely reword the plain statements of fact in one section only undermines the validity of the ruling to demagogues and the utterly ignorant.

  17. #17 Ed Brayton
    December 13, 2006

    On the Behe “not good enough” thing, I do think it should have been worded more carefully than it was. There should have been no quotes, and there should have been some explanation of what was in the record to portray the paraphrase as an accurate reflection of his testimony. But if that’s the worst criticism to be found in a 139 page ruling, that’s incredibly good. The problem is that a lot of people just don’t read court rulings on a regular basis like I and many others do. They don’t recognize how incredibly complex this trial was compared to normal trials. Most of these trials take a day or two, this went on for 6 weeks. The evidential record was absolutely immense. And this is for a district judge who probably only has two clerks, while it took the plaintiffs team nearly a dozen attorneys and at least that many support staff to put it all together and present it at trial. For anyone who actually understands the enormity of the task presented to Jones and how complex this trial was, his ruling can only be viewed as remarkable in its depth and accuracy.

  18. #18 Glen Davidson
    December 13, 2006

    It’s just a rehash of the old complaints, with the slightly interesting fact that much of the decision was written using the plaintiffs’ words added in. What’s the judge supposed to do, make things up like the IDists?

    More importantly, this seems to be about all they do any more, other than straight apologetics. They refight the lost battles trying to justify themselves, instead of fighting new battles. And if it is true that they originally came up with ID because they were fresh out of new ideas, they at least had some new wineskins in which to pour their vinegar.

    Now they don’t even have that. They’re just pitifully whining and moaning that it was all so unfair (remember Dembski’s boasts of what he’d do if the biologists were forced to testify–his “allies” wouldn’t even let that lame duck into the courtroom), call Jones a “putz”, and make a stupid satire on their largely unread “overwhelmingevidence” website.

    Oh yeah, they’re just about to show how wrong Jones really was with all of their hidden science that they’ve been working up.

    Glen D
    http://tinyurl.com/b8ykm

  19. #19 CThomas
    December 13, 2006

    Thanks, Ed. Maybe we now agree about the “not enough” quotation, although I won’t assume that from your silence.

    On the broader point, believe it or not (and I have to respectfully disagree with some of your commenters who have expressed a contrary view), this was not a hugely complicated or protracted case by the standards of the federal courts. There are many federal cases that go on for years, involve far more documents, far lengthier proposed findings, have far lengthier decisions (including some well over 1,000 pages in length), and that involve technical issues every bit as far afield from the district judge’s lay competence as this one. Judges have the luxury of having no deadline, and are expected to produce their own decisions even in complex cases. And it’s just not true that this Discovery Institute is committing a stupid mistake by complaining about this sort of copying if it occurred. When this sort of copying issue arises, as has happened in at least several cases in recent years that I’m aware of in different courts, the aggrieved party frequently raises the issue in rehearing or appellate proceedings.

    And it’s not just a trivial matter of common practice to do this. The judge is free to crib from the work of his or her law clerks (like the law firm partner cribs the work of his or her associates), but when a judge copies text produced outside chambers, including that produced by counsel in the case, there have been serious arguments back and forth about the propriety of doing that. I cited one arbitrary law review article to that effect in a comment to your preliminary post on this issue yesterday. If you disagree with the critics of judicial so-called “plagiarism,” fine. But honestly, it’s not just a trivial matter of waving the issue away as entirely ignorant and stupid. Lots of other litigants have raised the same issue in the recent past, and as I pointed out yesterday, the issue seems even more legitimate to raise in the context of the “court of public opinion” than in appellate proceedings, because even if the conduct does not warrant reversal (an issue on which I have expressed no view), it certainly is fair to point out to the public to evaluate it as they see fit.

    I would be making these exact same points if the decision had come out the other way, and the ACLU were complaining about copying findings from the Discovery Institute’s proposed findings. None of this should depend on anyone’s view about intelligent design or evolution. Indeed, I think it reflects well on someone if that person can put aside their strongly held views regarding the merits of a lawsuit and assess a procedural issue like this dispassionately.

  20. #20 Ed Brayton
    December 13, 2006

    The only suits that typically get more complex than this one are really intricate medical liability or product liability cases, which also generally involve a great deal of scientific testimony. My stepfather was involved in one of the largest such cases ever as an expert witness, when Monsanto sued Stauffer over the herbicide Roundup. That case went on for over a year. But those are rare cases. Compared to the average district court case, this was monumentally complex. I doubt more than 2% of all district court cases take more than a week of actual testimony. Having a dozen expert witnesses or more can’t happen in more than a tiny percentage of cases.

  21. #21 CJColucci
    December 13, 2006

    The judge did nothing wrong, but given the high rpofile of the case I would have made a point of using my own language as much as possible, partly to avoid this type of nonsense — and it is nonsense — and partly because on a case this big I’d be tempted to fall in love with the sound of my own voice and want people to respond to that, not to (legitimately) borrowed language.

  22. #22 Raging Bee
    December 13, 2006

    CJColucci: you kinda have a point, but “given the high profile” of this case, it was probably best for Judge Jones to do everything according to standard procedure, and not give ANY appearance of being loose with the facts or law, lest he be more justly trashed by the losing party — who, clearly, were ready from day one to find (or make up) any reason they could to reject the very legitimacy of any court that made a decision they didn’t like. In cases like this, it’s best to at least try to forestall hysteria by doing everything by the numbers and giving every appearance of proper-application-of-the-law-as-usual. Any rewriting would, inevitably, be misrepresented as “Judge Jones lied about what was said in his court!!!”

  23. #23 Steve Case
    December 13, 2006

    Eric Rothschild wrote (with help)the findings of fact for the paintiffs. Calling it ACLU material (or such) is an appeal to a conservative frame, i.e. ACLU = Evil.

    If Judge Jones is in error or made a mistake,then they should appeal and get the decision thrown out. Good luck to them – I wonder if they will use evidence in their appeal.

  24. #24 MarkP
    December 13, 2006

    The “plagiarism” charges run headlong into the “Behe didn’t say ‘wasn’t good enough’” claim in an exposing contradiction that makes Raging Bee’s point. The DI wants it both ways: when Judge Jones uses their exact language, he’s accused of plagiarism. When he summarizes the general point rather than using exact quotes, he’s accused of making errors.

    So once again, we find the DI guilty of intellectual dishonesty. Shocking.

  25. #25 chris
    December 13, 2006

    I know this has been posted several times, but to me it just boils down to, if he’s going to say something, and it has already been said, why should he make the effort to write it differently than it has already been placed in the PFOF? What is the point of that? How does it change the outcome of the case? If Judge Jones had spent hours and hours and delayed the decision until February, just so he could come up with a different way to say something he already had in front of him, that was correct and supported by the evidence, would that have materially affected the end result? The DI lost. They still would have lost if Jones had written his decision in Esperanto.

    Does any of the lawerly folks here have any other non-ID cases to cite in which the judge did the same thing? Maybe by showing the DI crowd that it really does happen all the time, and the decisions are accepted nevertheless, they would see that their position is baseless.

    Just a thought.

  26. #26 Tom
    December 13, 2006

    90.9% identical between earlier and later versions?

    This is yet another case of descent with modification!
    Even the DI’s own ‘research’ supports evolution.

  27. #27 Ed Brayton
    December 13, 2006

    Steve Case wrote:

    Eric Rothschild wrote (with help)the findings of fact for the paintiffs. Calling it ACLU material (or such) is an appeal to a conservative frame, i.e. ACLU = Evil.

    This is a good point. Only one of the many attorneys involved in this case was an ACLU attorney. The bulk of the work was done by the attorneys from Pepper Hamilton. In particular, Eric Rothschild was the primary author of that section.

    If Judge Jones is in error or made a mistake,then they should appeal and get the decision thrown out. Good luck to them – I wonder if they will use evidence in their appeal.

    Well, to be fair, the DI can’t appeal the case. The only ones who can appeal the case is the current Dover school board, and they aren’t about to do that.

  28. #28 m
    December 13, 2006

    The Wizards of ID are doing nothing differently from what they and their creationist ancestors at the Institute for Creation Research have always done. Namely the same kind of exegesis they do with their bible. Apparently their idea of scholarship is to pick and choose in order to get the result that satisfies the point they want to make at the moment.

    However, when one reads the scientific or legal documents they either butcher or impugn, there is no doubt about what was said or concluded in those documents. Nevertheless, the ID/Creationist crowd has the standard tactic of trying to change the meaning of the documents to support their arguments. They know that they can count on the fact that their camp followers will never delve into anything deeply enough to determine what really is going on. It’s the way these camp followers have been indoctrinated. In their world, real research is too dangerously close to reality.

  29. #29 Gerry L
    December 13, 2006

    Ed,
    I’m surprised you skipped over the biggest lie of all in the DI press release: the title.

    ‘Masterful’ Federal Ruling on Intelligent Design Was Copied From ACLU, Say Legal Scholars
    Tuesday December 12, 11:00 am ET
    SEATTLE, Dec. 12 /PRNewswire/ — The key section of the widely-noted court decision on intelligent design issued a year ago on December 20 was copied nearly verbatim from a document written by ACLU lawyers, according to a study released today by scholars affiliated with the Discovery Institute.
    http://biz.yahoo.com/prnews/061212/sftu034.html?.v=77

    LEGAL SCHOLARS?!?!? So, is John West, whose degrees are in communication and poli-sci, a legal scholar?

  30. #30 W. Kevin Vicklund
    December 13, 2006

    The statute of limitations for appeals on the merits ran out back in February (30 or 60 days after judgement, depending on how the law is applied). It would be almost impossible for anyone to appeal the decision at this point.

  31. #31 C.E. Petit
    December 13, 2006

    Just a couple of comments, from a lawyer (Alligator litigens):

    Although it is theoretically possible to come up with an almost infinite array of ways to reword a given proposed finding of fact, that doesn’t happen in practice. First, a good lawyer will word proposed findings of fact in a manner as close to the way that judge writes as possible. It’s always easier to get someone to adopt your position if you state it like they might themselves! (That lawyers are startlingly unoriginal writers doesn’t make this very hard…) Second, the judge must adapt his stated findings of fact to the evidence before him. That evidence is being presented by advocates for the proposed findings of fact. Especially when the evidence is being presented by expert witnesses — who have been carefully prepared by lawyers on exactly how to state their testimony — that severely restricts how the judge can word findings of fact.

    Then, too, there’s the restricted choice embodied in a complex, multipart document. (I’m shocked — completely shocked — that nobody from the DI pointed out that a postulate drawn from communications theory undermines their position.) Once one finds facts 1 through n, that restricts how a judge who isn’t begging to be reversed on appeal can express fact n+1. Appellate courts look very closely at inconsistent language in the trial judge’s rulings and opinions. In short, one simply cannot look at Fact n in isolation; the findings of fact are in support of a specific conclusion. I suppose you could say that the opinion was created by an intelligent designer… which is probably the only thing in that courtroom that was.

  32. #32 Torbjörn Larsson
    December 14, 2006

    A good post, though the section about “nearly verbatim” arguments could have been stated as clearly as in the comments. The problems with DI’s claim becomes abundantly clear in this thread. The most absurd is that they expected the same treatment with a win and that they complain both ways – copying and “not good enough” copying. It makes it visibly clear that whatever way Jones had stated the found facts they would have complained.

    any other non-ID cases to cite in which the judge did the same thing?

    This is discussed and exemplified on the PT thread ( http://www.pandasthumb.org/archives/2006/12/weekend_at_behe.html ).

    the biggest lie

    Cute, but the co-author in the study is “David K. DeWolf, J.D., Yale Law School, is a Professor of Law, Gonzaga University School of Law, Spokane, WA and a Senior Fellow of Discovery Institute.”

  33. #33 Gerry L
    December 14, 2006

    So, do all of his affiliations make David. K. DeWolf, J.D., a plural, as in “scholars”? Or does co-authoring with DeWolf make West an honorary legal scholar?

  34. #34 truth machine
    December 14, 2006

    if one were writing any of those claims independently

    No one claims that Judge Jones wrote, or should have written, the claims “independently”. Sheesh.

    On the first, you say you “demonstrated” that various points could not have been phrased in a way that was not nearly verbatim.

    No, he did not say that. Man, at least the paraphrase of Behe wasn’t a misrepresentation.

  35. #35 truth machine
    December 14, 2006

    I’m sure we could come up with countless others if we were so inclined. How about: [incredibly long winded statement] I’m sure that’s wordy and can be improved, and I’m also sure I’ve introduced errors because I’m no expert in this area.

    This is quite pathetic. Yes, of course there are numerous ways to badly write something on a given topic. But there aren’t all that many ways to express the same points succinctly.

    when a judge copies text produced outside chambers, including that produced by counsel in the case, there have been serious arguments back and forth about the propriety of doing that

    This gross generalization ignores all the relevant details about which text. There are no “serious” arguments against the “propriety” of what Judge Jones did.

    I think it reflects well on someone if that person can put aside their strongly held views regarding the merits of a lawsuit and assess a procedural issue like this dispassionately.

    “dispassionate” misrepresentations and pedantic overreaching don’t reflect all that well on one.

  36. #36 truth machine
    December 14, 2006

    The complaint about “it’s not good enough” is absurd. Suppose I buy a red dress for someone who favors black dresses, and she doesn’t wear it. I ask if that’s because it’s not black, and she replies “It’s not that it’s not black, but that it’s too short”. Is that a denial that it’s not black? No, of course not. And likewise, Behe didn’t deny that it’s not good enough, he simply proclaimed that he had a different problem with the research. But of course his proclamation was preposterous. He was asked a yes or no question, and he refused to acknowledge that the research was good enough; that was tantamount to saying that it wasn’t.

  37. #37 Christophe Thill
    December 14, 2006

    I love the “Where does ET come from?” quote. Why couldn’t ET have evolved without a designer? What if ET is not irreducibly complex? Or perhaps there’s a special designer who worked only on ET? And why not ask, then, who designed the designer?

    Oh, my designer! All this ID rhetoric is really designer-awful…

  38. #38 Torbjörn Larsson
    December 14, 2006

    So, do all of his affiliations make David. K. DeWolf, J.D., a plural, as in “scholars”?

    Oh, was that your point? I’m used to see always see plurals in similar cases, signifying categories, not individuals. But you are correct, in a press release it should not be such language, especially if it is technically wrong.

    I’m not sure it makes this the biggest lie, though. Or cute. ;-)

  39. #39 JesusChristAlmighty
    December 27, 2006

    Ed makes a good point, that the subject matter of the opinion, by its very nature, placed limits on the amount of variability that was reasonably possible. How do you talk about a pink elephant, for example, without using the words “pink” and “elephant”? Demanding that judges avoid using the terms and phrases that are naturally appropriate to a specific case amounts to elevating form over substance.

    Specifically in the Kitzmiller case, some of the criticized duplication involved lengthy quotations of oral testimony and documentary evidence, including a long quotation of Behe’s definition of irreducible complexity. If the ID-iots are using that as an example of inappropriate copying, that is simply a trumped up charge.

    Much of the duplication involved witness names. “Behe,” for example, occurs over 60 times in both documents. Jones could have avoided that “copying” by using “Bozo” instead, but I doubt that the ID-iots would approve of that either. In any case, if “Behe” is included in the charge of copying, then that is a trumped up charge as well.

    The word “science” occurs over 60 times in the ACLU document. Does that mean that Jones shouldn’t have used that word in his opinion? If that’s part of the DI complaint about copying, then their complaint is stupid.

    In referencing documents and testimony, Jones used the same page numbers and case names as the ACLU. Is it the ID-iots’ position that Jones should have used different page numbers and case names instead? That’s pretty stupid too.

    Some of the duplication resulted from the fact that the terms “irreducible complexity” and “bacterial flagellum” appeared in both documents. Was it improper for Jones to use the same words that the ACLU used in those cases? If so, then what words do the ID-iots think Jones should have used instead?

    In short, when you take out all of the words and phrases where “copying” was unavoidable, the number of words left over are hardly worth arguing about. Of course no one ever accused the ID-iots of refraining from making trivial arguments!

    I also agree with Ed’s take on “not good enough.” Quotation marks can be used for a variety of purposes. They do not always indicate verbatim quotes. Sometimes quotations marks mean only that a certain word or phrase is being used for a specific purpose. For example, someone may properly be accused of supporting “alternative life styles,” even if that person never actually uttered that particular phrase. That is not an illegitimate use of quotation marks at all. And who knows, that may be exactly the way Judge Jones meant to use the “not good enough” statement. After reading the portion of the transcript where that phrase appears, that may well be what Jones had in mind.

    If that was his intent, I think he made a mistake, but the mistake is one of style, not of substance. In the context of the Kitzmiller opinion, Jones had already used quotation marks many times where he clearly was quoting exact words. To use quotation marks again for the completely different purpose described above would be very confusing. For that reason, I think it would have been better for Jones to have left out the quotation marks.

    That being said, the ID-iots’ argument here basically boils down to a dispute over punctuation. Only an ID-iot would think that carries any weight. If ID-iots want to try that argument in court, they are welcome to do so, but I suspect that federal judges will dismiss it as “not good enough.”

    Finally, I’m a retired lawyer. When I was working, a large part of my duties involved writing letters and filling out forms for other people to sign. Anyone who thinks that’s improper just doesn’t understand how the practice of law is carried out. To take just one obvious example, judges do not write their own search warrants, rather they sign search warrants that are prepared for them either by the police or by the DA. Duh.

    In Kitzmiller, Jones accused the ID-iots of imposing unreasonable expectations on evolutionists (page 78). In this case, the ID-iots are imposing unreasonable expectations on Jones himself.

  40. #40 JesusChristAlmighty
    December 27, 2006

    I just read Jay Wexler’s criticism of the Kitmiller opinion.

    < http://www.bc.edu/bc_org/research/rapl/events/abstract_wexler.html>

    According to Wexler, Jones should not have ruled that ID is not science, since his determination that ID endorses religion was sufficient to rule the policy unconstitutional.

    Wexler’s rationale is seriously flawed, because it fails to address the minimum requirements established by the Supreme Court in Lemon v. Kurtzman.

    Lemon established a three-part test. (Wexler’s reference to “endorsement,” involves a later case which clarified, but did not fundamentally change, the basic Lemon requirements, so for simplicity, it’s easier to stick with the Lemon analysis.) The problem with Wexler’s opinion is that the second prong of the Lemon test involves balancing the secular and religious effects of the disputed governmental action. In balancing those two effects, if the effect of religious endorsement is outweighed by secular effects, then the challenged law will not be struck down. So Wexler’s claim that religious endorsement by itself is enough to invalidate a governmental action is simply wrong. Not only was it proper for Judge Jones to investigate the secular merits of teaching ID, under Lemon it was an absolute necessity. (Furthermore, since both parties specifically requested Judge Jones to rule on that issue, it would be pretty unusual, though technically not impossible, for Jones to refuse do so.)

    Naturally, Jones found that ID had no scientific merit. Since ID had no scientific merit, its secular effects did not outweigh its religious effects. Only after determining the relative weights of both religious and secular effects could Jones logically conclude that the challenged action did not satisfy the second prong of the Lemon test.

    Put another way, Lemon’s second prong involves a balancing test. Wexler proposes that judges issue their rulings after looking at only one side of the balance beam. That’s just wrong. Regardless of the weight on one side of the balance beam, it is logically impossible to determine whether that side is heavier or lighter than the other side, without actually looking at the other side too. Duh.

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