Casey Luskin is promoting a student note in the Rutgers Journal of Law and Religion that makes the same argument the IDers have been making since the Dover ruling came down, that the judge should have ruled only on the question of purpose or motive and not ruled on the question of whether ID is or is not a scientific theory. The student noted, by a current 3L at Rutgers Law School named Philip Italiano, betrays a couple of basic misconceptions about the operation of trial courts vs appellate courts, as I will show in this reply. It also puts on display a central deceit in the ID arguments on such legal questions.
Italiano correctly notes that Judge Jones offered multiple bases for his ruling on the matter. Contrary to previous Supreme Court precedents involving evolution controversies, Jones did not merely look at the purpose prong of the Lemon test, but he also looked at and ruled on the effect prong and the endorsement test. In fact, he presented the endorsement test analysis prior to the analysis of either prong of the Lemon test. Italiano agrees with the outcome of the ruling, declaring the policy to be unconstitutional, but he argues that the Court should have stopped with a purpose prong analysis and not done any analysis of either the effect prong or the endorsement test. Perhaps a look at those tests first is a good idea. Here’s how Italiano describes the Lemon test:
Todays Lemon test provides that a governmentsponsored message violates the Establishment Clause of the First Amendment if: 1) it does not have a secular purpose, and 2) its principal or primary effect advances or inhibits religion.
There is a third prong as well, requiring that the policy not create “excessive entanglement” between church and state, but that prong is irrelevant to this case (and to most cases, frankly). Under the endorsement test, the court must determine whether an “objective observer” with knowledge of “the policys language, origins, legislative history, as well as the history of the community and the broader social and historical context in which the policy arose” would perceive the policy as endorsing a particular religious viewpoint.
Italiano correctly notes that in all of the previous evolution cases decided by the Supreme Court, it was the purpose prong of the Lemon test that was the primary basis of the violation (including Epperson; although that case predates Lemon, the basis for the decision was still the purpose and motive of the legislature that was the key to the decision). On that basis, then, Italiano argues that while the ultimate decision was correct, Judge Jones should not have ruled on any basis other than the purpose prong of the Lemon test:
The court’s decision in Kitzmiller to strike down the Dover School Board’s policy seems correct, especially in light of the Dover board members’ attempts to inject religion into their public school.The scope of the court’s decision wrongly exceeded the board members’ actions, however, and it placed the courts further into the center of a larger scientific and philosophical debate about the legitimacy of intelligent design.
He further argues that the previous courts that handled evolution cases (specifically Epperson, Edwards and Freiler) would not have gone beyond a purpose prong analysis and would have ignored the question of whether ID is scientific or religious:
When comparing this court’s analysis of the Dover Board’s policy with other courts’ dispositions of statutes and policies affecting the teaching of evolution in public schools, it is evident that Dover’s policy would have been struck down on different grounds than those used by the Middle District of Pennsylvania. In fact, under the cases that previously dealt with this issue, the scientific basis of intelligent design most likely would have escaped judicial evaluation.
But I think he does a very shallow job of comparing those cases to Kitzmiller, ignoring key distinctions that make his conclusion untenable. Here is his comparison to Epperson:
Under the Supreme Court’s analysis of Epperson, Dover’s policy would most likely have failed because Dover’s board members implemented the policy out of their well documented interest in inserting religious ideas into the school system. While the source of the Arkansas law struck down in Epperson was the religious views of Arkansas citizens, the source of the Dover policy was the religious views of its board members. If we still existed in a pre-Lemon test world, Epperson suggests that the religious source of the Dover policy would have been sufficient for a court to invalidate it.
But he provides no analysis at all of the obvious differences between Epperson and Kitzmiller, the most important of which is that in Epperson there was no alternative theory to consider at all. The law struck down in that case merely banned the teaching of evolution, it did not offer any alternative to evolution; thus, there was nothing else for the court to consider other than that negative policy and the purpose for which it was passed. It it hardly a compelling argument to say that a court that never had to deal with how to analyze a particular type of policy would have done so in a particular way.
Here is his comparison of Kitzmiller to Edwards:
Under the Supreme Court’s analysis of the Louisiana Creationism Act in Edwards, the Dover policy would also have been struck down based upon the religious motives of the board members in implementing the policy. The Edwards court, applying the Lemon test, stated: “If the law was enacted for the purpose of endorsing religion, ‘no consideration of the second or third criteria [of Lemon] is necessary.’” The Edwards court halted its analysis after concluding that the purpose of the curriculum change was to endorse religion. A review of the Dover board members’ interest in injecting religious views into the school system and of the significant role that religion played in the adoption of a new biology textbook suggests that the analysis could have ended and the policy could have been invalidated at this point.
But this seriously misrepresents the text of the Edwards ruling (see ruling here). It simply is not true that the court stopped with the purpose analysis; the court also declared that creationism was an inherently religious idea and that the legislature was violating the establishment clause by endorsing that religious idea. And this is not stated in dicta, it is stated in the court’s holding itself. Here is that holding:
1. The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose. Pp. 585-594.
(a) The Act does not further its stated secular purpose of “protecting academic freedom.” It does not enhance the freedom of teachers to teach what they choose and fails to further the goal of “teaching all of the evidence.” Forbidding the teaching of evolution when creation science is not also taught undermines the provision of a comprehensive scientific education. Moreover, requiring the teaching of creation science with evolution does not give schoolteachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Furthermore, the contention that the Act furthers a “basic concept of fairness” by requiring the teaching of all of the evidence on the subject is without merit. Indeed, the Act evinces a discriminatory preference for the teaching of creation science and against the teaching of evolution by requiring that curriculum guides be developed and resource services supplied for teaching creationism but not for teaching evolution, by limiting membership on the resource services panel to “creation scientists,” and by forbidding school boards to discriminate against anyone who “chooses to be a creation-scientist” or to teach creation science, while failing to protect those who choose to teach other theories or who refuse to teach creation science. A law intended to maximize the comprehensiveness and effectiveness of science instruction would encourage the teaching of all scientific theories about human origins. Instead, this Act has the distinctly different purpose of discrediting evolution by counterbalancing its teaching at every turn with the teaching of creationism. Pp. 586-589.
(b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term “creation science,” as contemplated by the state legislature, embraces this religious teaching. The Act’s primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment. Pp. 589-594. 2. The District Court did not err in granting summary judgment upon a finding that appellants had failed to raise a genuine issue of material fact. Appellants relied on the “uncontroverted” affidavits of scientists, theologians, and an education administrator defining creation science as “origin through abrupt appearance in complex form” and alleging that such a viewpoint constitutes a true scientific theory. The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act’s terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. Pp. 594-596.
Thus, the Edwards court in fact did exactly what Judge Jones did, considered the question of whether the alternative to evolution being advanced was a scientific theory or a religious idea, determined that it was religious, and declared the endorsement of that idea by a public school to be unconstitutional. Furthermore, the Court did so using the same kinds of analysis, looking at the historical context of legislative efforts to weaken the teaching of evolution in order to support religious alternatives:
There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution (10). It was this link that concerned the Court in Epperson v. Arkansas, 393 U.S. 97 (1968), which also involved a facial challenge to a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas antievolution law did not explicitly state its predominate religious purpose, the Court could not ignore that “the statute was a product of the upsurge of ‘fundamentalist’ religious fervor” that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. Id., at 98, 106-107 (11). After reviewing the history of antievolution statutes, the Court determined that “there can be no doubt that the motivation for the [Arkansas] law was the same [as other anti-evolution statutes]: to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man.” Id., at 109. The Court found that there can be no legitimate state interest in protecting particular religions from scientific views “distasteful to them,” id., at 107 (citation omitted), and concluded “that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma,” id., at 106.
These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind (12). The term “creation science” was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith’s leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator. See 1 App. E-421 == E-422 (noting that “creation scientists” point to high probability that life was “created by an intelligent mind”) (13). Senator Keith also cited testimony from other experts to support the creation-science view that “a creator [was] responsible for the universe and everything in it.” (14) 2 App. E-497. The legislative history therefore reveals that the term “creation science,” as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind.
Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act’s primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety.
Note that the Court in Edwards also referenced this same kind of historical analysis in Epperson. Judge Jones did exactly the same kind of analysis on the history of anti-evolution legislation and drew the same conclusions. More importantly, notice that the Edwards court did consider the question of whether “creation science” is a religious idea or a scientific theory, and concluded that it is a religious idea. The purpose and effect prongs merge together here, as they often have in the Court’s rulings: if the idea being promoted is clearly a religious one, then the effect of the policy is to promote a religious idea and the purpose of the legislature in passing that policy is to advance that religious agenda. You cannot separate the two so easily, and contrary to Italiano’s claim, the Court in Edwards did not attempt to do so.
Even if this was not the case, the argument he offers for stopping at a purpose prong analysis is not convincing, primary because he ignores the key distinctions between those cases and Kitzmiller. I’ve already mentioned the obvious distinction between Epperson and Kitzmiller, the fact that there was no alternative to be considered in the previous case. The key difference between Edwards and Kitzmiller is that the Court in Edwards was only considering the legitimacy of a motion for summary judgment, not doing a review of a full trial court decision.
There was no trial in Edwards at the district court level. Both sides stipulated all of the facts and the judge granted the plaintiffs’ motion for summary judgment. That sets up an entirely different standard of review for the appellate courts, who then only consider whether the district court’s granting of that motion was correct. The higher courts cannot go back and consider any other issues other than the reasoning the lower court used to decide on that specific motion. So even if the Court had only considered a purpose prong analysis in Edwards, it would not provide a template for how a district court judge should rule in a case where there is no summary judgment granted and where the facts are disputed by the two parties.
Italiano also ignores the basic role of a district judge. A district judge’s goal is not to be overturned by a higher court, which means not giving either side grounds for appeal. And that means allowing both sides to present the strongest possible case for their position. In this case, both sides made the question of the nature of ID the key component of their case. The plaintiffs did not just argue that the school board had a religious motivation, they argued that the book they were providing as a supplemental text and the idea that book promotes are inherently religious and therefore even if the school board had no religious motivation at all, the effect of the policy would be to advance a religious idea.
Likewise, the defense argued that ID is a purely scientific theory and therefore the motivation of the school board does not matter, that the policy was advancing a scientific theory and not a religious idea. Had Judge Jones not allowed the two sides to present this key argument and adjudicate it, he would have provided powerful grounds for appeal no matter which way he ruled. He did what any smart district court judge does, allowed both sides to present their strongest possible case and then wrote an exhaustive opinion that took into account all of the arguments made by both sides. That’s what a responsible district court judge does.
Now, having debunked this argument I want to focus on the clear hypocrisy of the ID movement in promoting it. The hypocrisy is this: for years creationists and IDers have been arguing that the purpose prong of the Lemon test is constitutionally dubious, unfair to religious voters and should be done away with. Now, when it’s convenient for them, they’re suddenly arguing that the courts should consider only the purpose prong and nothing else. A few examples of IDers criticizing the purpose prong prior to the Kitzmiller ruling. Here’s Casey Luskin himself, the very one now promoting this argument, in an FAQ just before the ruling came out:
“The Lemon test has been sharply criticized over the years. The most common criticism is that its “first prong” should not delve into the motivations or purposes of legislators because (a) it can be difficult to correctly ascertain the true motives of an entire legislative body; (b) our country permits religious freedom and has a long history permitting people to act publicly upon their religious values; and (c) all that really matters is the effect of a law, and if the effect is secular and beneficial to society, then the motivations for passing it should be immaterial. As Justice Scalia pointed out in a case dealing with the teaching of creationism, “[t]oday’s religious activism may give us the Balanced Treatment Act … yesterday’s resulted in the abolition of slavery, and tomorrow’s may bring relief for famine victims.”
Here’s my friend Frank Beckwith, a DI fellow, who has argued very strongly that the purpose prong is inherently unfair to religious voters:
“I argue in this lecture that the sort of analysis that I’ve mentioned already–namely the religious motive analysis–may violate not only the no religious test clause which is found in Article VI of the Constitution, but also the general prohibition that the Supreme Court and other courts have made against the assessing of beliefs in order to marginalize or penalize citizens in exercising their political rights.”
Here’s DI staffer Mark Ryland in a roundtable discussion just before the Dover trial began:
“I think we’re all struggling with this whole issue of motive, which the Supreme Court has also struggled with. How much should motive really matter in deciding some of these constitutional questions? I’ll let David maybe comment in more depth on that, but I will say that there is a symmetrical problem on the other side. The court has clearly said that atheism should be treated as a kind of religion for purposes of the Establishment Clause. And if you look at the people who fight vigorously against our position, many of them are aligned with secular humanist organizations, atheist organizations and so forth. So if you’re going to say that motivation matters, then the motives of the people who are supporting evolution are relevant, and they would also be religious motives.
I think the best approach is to try to get away from this motive question and look at the evidence, look at the science and focus on what makes the most sense in terms of pedagogy. How are students best going to learn this? They learn it best when they are presented with an alternative argument, because right from the start Darwin described his book as one long argument. Well, what was he arguing with? The only way you can really understand the claims, the radical and impressive claims made by Darwin’s theory, is by comparing them to a theory which says, no, there is some kind of intelligent cause here.”
Here’s DI fellow David DeWolf in that same forum:
I’ll join Barry in the fool department here – (laughter) – and that is, I think the judge will take a very close look at the question about how religion and science are to be treated in this environment. And there may be issues about the purposes and motivations of the school board members, precisely because the Lemon test requires this kind of intense – and inappropriate, I believe – scrutiny. But one way or the other I think we’re going to get a helpful guideline as to how best to present this, and it may be a mixed decision, I think, leaving neither side completely happy with it and neither side completely crestfallen.
I could go on with similar statements all day. For nearly 3 decades now, creationists and ID advocates have argued that the purpose prong of the Lemon test is unfair and biased against believers. Their argument, frankly, is a powerful one: it is entirely plausible for someone to be motivated by their religious views to promote a perfectly constitutional policy. Those civil rights leaders who made powerful religious arguments against discrimination did not transform the policies they advocated into unconstitutional policies merely because they were motived by a religious purpose. The same is true of those abolitionists who argued against slavery on religious grounds.
Thus, they argue, motivation should be irrelevant, only the actual effect of the policy and whether it’s unconstitutional should matter, not the motivations of those who advocate it. This is a very powerful argument. Yet they abandon it completely when it suits their purposes and suddenly want to argue that courts should rule only on purpose or motivation and not on the actual effect of a policy or whether it’s unconstitutional in reality. Their mantra seems to be “whatever we have to say at any given time.” That is the mantra of a PR campaign, not a serious and principled intellectual endeavor.