Dispatches from the Creation Wars

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.

Comments

  1. #1 steve s
    January 15, 2007

    Shorter Casey Luskin: The judge should have only given us half the whoopin he gave us.

  2. #2 Any-mouse
    January 15, 2007

    Ed writes:

    “A district judge’s goal is not to be overturned by a higher court, which means not giving either side grounds for appeal.”

    As a person with a distinctly inside point of view, I suggest you are both correct in your supposition and wrong as to its consequences. Many a judge affirms or denies with the barest of comment because THAT is how you avoid being overturned by a higher court. Indeed, the most difficult order to appeal is one that simply states “Denied.”

  3. #3 kehrsam
    January 15, 2007

    I agree that the purpose prong is irrelevant and generally serves to just confuse what the actual issue is. Consider a school district where a majority of the population follows an eastern religion (there are several majority Buddhist communities in Hawaii). Suppose the School Board mandates that every high school student must take a course in modern physics and specifically argues that this is for the purpose of showing that Buddhism is consistent with modern science. This clearly violates the Purpose Prong; aside from this, however, what possibnle objection is there?

    I have argued before that Lemon needs to go, so I won’t get back into that discussion. But the proper analysis is going to be precisely the opposite of Italiano’s.

  4. #4 Ed Darrell
    January 15, 2007

    I’m happy you picked up on the contrast between the traditional arguments ID advocates have used against the purpose prong, and this current version (though, to be fair, can we call Luskin a representative of the ID movement? Does Beckwith have comment anywhere? Beckwith denies being an advocate of ID even, let alone any strategy on promoting it.)

    One of the points that I thought was clear in McLean and easily discernible in Epperson before that, was the simple fact that there is no science backing for a case against evolution. After the Arkansas ruling in 1982, and after the Louisiana ruling in 1987 that relied on the Arkansas case, all that was necessary to get any form of creationism or any other opposition to evolution, into the textbooks and into the curricula, was to go do some supporting research and publish it in respected journals.

    The failure of evolution opponents to do even a lick of research, over the past 40 years, and instead their significant investment in public relations tricks and propaganda, should be a scandal. Some of these people bill themselves as “ministries.” Where are the state attorneys general to police against such scams?

    Discovery Institute has some significant overseers, one might presume. How can they turn a blind eye to such scams in one part of the Institute’s work? Does this suggest that the work of the rest of the institute is as scamful?

  5. #5 SLC
    January 15, 2007

    As Judge Jones has pointed out in several speeches and interviews, both sides asked him to rule on whether ID was science. Mr. Luskin and his ilk should be directing their ire at Richard Thompson, not Judge Jones.

  6. #6 scott pilutik
    January 15, 2007

    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.

    I think you’re right in that it is a powerful argument, but I think that most of the whining over the purpose prong over the years is disingenuous for a different reason: plenty of courts have noted that the purpose prong does not invalidate if a religious motivation is present–it invalidates if no valid secular purpose is present. This may seem like semantics, but it’s really not. In the civil rights context offered above, a valid secular purpose was always present–promoting equality between the races. That a religious motivation was also present does not invalidate under the purpose prong. By inquiring into whether a valid secular purpose is present, courts are essentially asking whether the proferred purpose is a sham–a deliberate circumvention of religion clauses. This is a high standard.

    Obviously, in the process of determining whether a valid secular purpose exists, inquiry into the actual purpose will occur, and thus cases dealing with the purpose prong will inevitably discuss the religious purpose. The presence of a religious purpose may be indicative of the absence of a valid secular purpose–but it’s not as if the courts cease inquiry at the moment they discover a religious purpose. The Supreme Court has invalidated a law under the purpose prong 5 times (Epperson & Edwards in an evolution v creationism context; Stone & McCreary in a 10 Commandments context; and Wallace v. Jaffree in a school prayer context), and in each case, the proferred secular purpose was an utterly preposterous and transparent end around the constitution, which is what the purpose prong was meant to invalidate.

  7. #7 Ed Brayton
    January 15, 2007

    Ed Darrell wrote:

    I’m happy you picked up on the contrast between the traditional arguments ID advocates have used against the purpose prong, and this current version (though, to be fair, can we call Luskin a representative of the ID movement? Does Beckwith have comment anywhere? Beckwith denies being an advocate of ID even, let alone any strategy on promoting it.)

    Yes, we certainly can call Luskin a representative of the ID movement; he is one of the primary spokespeople for the Discovery Institute now. As for Beckwith, it should be noted that I have not seen him criticize the Kitzmiller ruling for not limiting itself to the purpose prong, so this should not be taken as an accusation of hypocrisy against him specifically. I included the quote from him as an example of those criticisms of the purpose prong coming from those associated with the DI.

  8. #8 Ed Brayton
    January 15, 2007

    Scott Pilutik wrote:

    I think you’re right in that it is a powerful argument, but I think that most of the whining over the purpose prong over the years is disingenuous for a different reason: plenty of courts have noted that the purpose prong does not invalidate if a religious motivation is present–it invalidates if no valid secular purpose is present. This may seem like semantics, but it’s really not. In the civil rights context offered above, a valid secular purpose was always present–promoting equality between the races. That a religious motivation was also present does not invalidate under the purpose prong. By inquiring into whether a valid secular purpose is present, courts are essentially asking whether the proferred purpose is a sham–a deliberate circumvention of religion clauses. This is a high standard.

    That is a very good point. In the original Cobb County trial court ruling, Judge Cooper ruled that there was a religious motivation or purpose behind the policy, but that it still passed the purpose prong test because there were also secular purposes present. He invalidated it based on the effect prong. That ruling is now mooted, but it’s a good example of exactly what you’re talking about.

  9. #9 John Pieret
    January 15, 2007

    Many a judge affirms or denies with the barest of comment because THAT is how you avoid being overturned by a higher court. Indeed, the most difficult order to appeal is one that simply states “Denied.”

    While that is true, it is also true that a judge cannot take six weeks of testimony and issue a one word decision. That attracts appellate interest too.

    Once a trial judge starts setting out grounds for a decision, s/he will almost always give every possible one.

  10. #10 ctw
    January 15, 2007

    a question. from lemon:

    “Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. [etc]”

    ie, the “lemon test” is really an amalgam of tests from other cases. so, if kersham is right that “Lemon needs to go”, would overruling it alone suffice, or would it also require the same for the cases referenced, or would the SC need to identify and overrule all previous cases from which the “lemon tests” might have been gleaned? and in the same vein, what the endorsement test (intended also to be a question re procedure, not merit)?

    -charles

  11. #11 ctw
    January 15, 2007

    let’s try that last line again:

    what about the endorsement test? (intended …)

    -c

  12. #12 kehrsam
    January 15, 2007

    ctw: Each of Lemon’s three prongs is based upon differing explanations of the Establishment Cluse from the First Amendment. Each of these is taken from prior cases, what Lemon did was put them together to state a new rule, effectively overruling the prior precedents and replacing them. The Supremes would do the same thing if thet wished to overrule Lemon. At least that’s one way to do it.

    Scalia’s complaint (with which I agree) is that the Court has efectively overruled Lemon without explicitly doing so. Rather than overruling Lemon, several recent decisions have simply ignored it, issuing a judgment on other grounds. When it leads to a decision a majority of the Court likes, they cite Lemon; otherwise, no. Not a good way to run a railroad.

  13. #13 Ed Brayton
    January 15, 2007

    I think pretty much everyone who has studied the subject would agree that establishment clause jurisprudence is a big mess. We’ve got this big mishmash of rulings that split the baby into about 8 pieces and as kehrsam notes, the court sometimes uses the tests they’ve articulated and sometimes they don’t. Scalia’s brilliant concurrence in Lamb’s Chapel hit the nail on the head – the Lemon test is like a late night movie ghoul that the court keeps around for use when it needs it. This incoherence has given us constitutional doctrines that say that displaying the ten commandments outside the courthouse is fine, but inside the courthouse is not. Or that displaying the nativity on public grounds is okay as long as you throw in a few giant candy canes and a nutcracker or two. But here’s the other thing it does: it makes district court judges have to guess what standard the higher courts will apply, or do what Judge Jones did, evaluate it under every potential standard they might choose to use if the case is appealed.

  14. #14 Dan
    January 15, 2007

    Ed: I’m not sure if this is the direction you want this thread to move in; if not, feel free to delete this.

    There is a widely-held sentiment, and lots of judicial and scholarly commentary, that Lemon should be eliminated. Of course, this sentiment is nothing new; it has been around ever since Lemon was handed down. At one time on the Rehnquist Court, at least 5 Justices had written of their dissatisfaction with Lemon (Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas). And yet these five could never unite and bring an end to Lemon, much to the consternation of Justice Scalia, whose opinion in Lamb’s Chapel is a classic of Scalian rhetoric.

    Which leads to what is, in my mind, the more interesting question. To those who would get rid of Lemon, please complete this sentence:

    I think that Lemon should be overruled, and it should be replaced with _______________.

    Endorsement? Coercion? Something else? We have this discussion every term in Con Law II, and I suspect it is a discussion that the Justices have with, and amongst, themselves. Tough to go out with the old until we have something with which to replace it.

  15. #15 dogmeatIB
    January 15, 2007

    So then the question is Kehrsam, is Lemon the problem, or is it the court’s apparently inability to follow their own guidelines? Regardless of whether the Lemon test is flawed or not, I’m not familiar enough with your overall argument to agree or disagree, wouldn’t the courts’ inability to follow the standard be the crux of the problem?

    Personally my take is that ID advocates are in something of a “what if?” mode. If Judge Jones hadn’t ruled, as requested, regarding the scientific validity of ID, they could have possibly tried to get a “redo” on Dover with a more favorable, from their point of view, judge. Basically they could get another school districts to attempt to implement an ID program with explicity stated reasoning that did not have religious goals or undertones. Something along the lines of:

    “The Bugtussle school board adopts the alternate textbook “Of Pandas and People” in order to teach all sides of the evolution debate in an effort to foster greater learning and critical thinking in its students.”

    Or some such nonsense. I think they’re wishing that they could have had another chance to implement ID, in another time/place, without the religious motivation, hoping that another judge wouldn’t look too closely at the lack of actual science, theory, or validity.

  16. #16 W. Kevin Vicklund
    January 15, 2007

    Italiano makes a number of mistakes in his essay.

    One premise is that because there was no mention of the endorsement test in his denial of summary judgement, he shouldn’t have used the endorsement test in his opinion. But the question wasn’t before Jones at the time. The defendants moved to dismiss based on the Lemon test, but didn’t mention the endorsement test (and had made it known they felt it didn’t apply). And the plaintiffs, although they had asserted a claim based on both the Lemon and endorsement tests, only responded to the Lemon test defenses in their brief requesting a denial of summary judgement. It would have been premature and unwise (and activist) of Judge Jones to adjudicate a dispute that neither party had properly placed before him, especially since he did not need to perform that analysis in order to let the case proceed to trial. Furthermore, a denial of summary judgement is unappealable (as long as it leads to trial at least), and there is therefore no need to delve into those waters for purposes of potential appellate review. Jones did need to determine whether summary judgement could be reached on the two prongs of the Lemon test, however, because if even one prong could be determined by summary judgement, it would mean that that prong need not be determined at trial. Another point is that a claim based on the endorsement test could legitimately be added after the denial of summary judgement (hypothetical point of course) for trial purposes.

    A second issue is that courts in other circuits would not have reached an endorsement analysis, specifically in the 6th and 10th circuits. Especially troubling is his analysis of whether a 6th circuit district court would continue past a failed purpose prong analysis. Rather than look for a case that failed a purpose clause analysis and then see how it proceeded from that point, he declared by fiat that if such a case had not passed, it would not have proceeded because of Edwards. Now if it were true that no case in the 6th had ever failed a purpose prong test, that might have been a place to start, albeit shaky. But there were a number of 6th Circuit cases in the late ’90s and early ’00s that had failed the purpose prong analysis at either the district court or circuit court level for him to analyze. In fact, one of them even went on to the Supreme Court: MaCreary.

    I hear the chorus now: Didn’t Ed say McCreary was a purpose prong case? The answer: only at the Supreme Court level. The district court evaluated McCreary on the first two prongs of the Lemon test, treating the effect prong as the endorsement test. McCreary failed on both prongs. The opinion in the appeal also evaluated both prongs; in fact, here is what the opinion had to say:

    Although the inquiry into the constitutionality of the displays could end here, inasmuch as failure under any one of the Lemon prongs deems governmental action violative of the Establishment Clause, see Edwards, 482 U.S. at 583, we shall address the “endorsement” prong of Lemon because the district court addressed the second prong as well.

    The circuit court also failed McCreary on both prongs, although it did chastise the district court for a purpose prong analysis that wasn’t as detailed as it should have been. But the result was 2-1, and the second judge concurred in the purpose prong analysis, but felt there was no need to extend appellate review to the effect/endorsement prong. The defendants then appealed to the Supreme Court, hoping to get the Supreme Court to eliminate the purpose prong or declare it insufficient by itself. If they had, the Circuit court decision would have been split 1-1 on the effect/endorsement prong, with one judge undecided – the Supreme Court may have chosen to remand back to the Circuit to determine the effect/endorsement prong, or they may have decided to do so themselves.

    But it is obvious that prior to McCreary, 6th Circuit district courts were in fact doing full Lemon test analyses, even when the purpose prong was failed, despite the Edwards “precedent.” In fact, there are a number of such cases that demonstrate that district court judges in the 6th circuit routinely did full Lemon test analyses. There’s been a shift since McCreary, but many still do a full analysis. Edwards did not create the precedent in the 6th CIrcuit that Italiano claims.

    The 10th Circuit is harder to determine. I was unable to find any recent appellate cases that dealt with a failed purpose prong. However, the controlling precedent appears to state that, due to the evolving nature of Establishment clause jurisprudence, all prongs should be applied. From Bauchman ex rel. v. West High School (decided Dec 18, 1997 in the 10th Circuit Court of Appeals – I don’t have the full cite):

    Nevertheless, the uncertainty surrounding the present Court’s position regarding the appropriate scope of the endorsement test and the appropriate Establishment Clause analysis, in general, cautions us to apply both the purpose and effect components of the refined endorsement test, together with the entanglement criterion imposed by Lemon, when evaluating Ms. Bauchman’s Establishment Clause claim.

    In Bauchman, the defendants passed all prongs of the Lemon test (the first two prongs are modified per the endorsement test in the 10th Circuit). Indeed, McCreary may have allayed the concerns of the court. But there has been no indication of that being fact, so it is not unreasonable for a district court to conclude that Bauchman is still binding. Recent cases indicate that this may be the case, in that they reference the uncertain landscape mentioned by Bauchman. One possible case, which I do not have access to, is Robinson v. City of Edmond, 68 F.3d 1226, 1228 (10th Cir. 1995). I know the appellate decision was rendered (reversal of district court’s dismissal) on the basis of the first two prongs as modified by the endorsement test, but I can’t say for certain whether it failed both prongs (although it appears that it did) or just the second on appeal.

    I could go on, but I think I’ve bored everyone enough for one post.

  17. #17 Ed Brayton
    January 15, 2007

    Dan-

    You ask a very good question, and I’ll be happy to see a discussion on that subject. I’ll admit that I don’t have a quick and easy answer to it. I think the endorsement test is valid for certain types of establishment clause cases, but not for all; the problem with the endorsement test is that it forces the court to place themselves into the hypothetical mind of a hypothetical “objective observer.” Certainly the coercion test favored by Scalia is far too lax. The evolution cases are a very specialized type of establishment clause case that may well require a separate standard. There doesn’t necessarily have to be a simple test that can be applied.

  18. #18 ctw
    January 15, 2007

    “Rather than overruling Lemon, several recent decisions have simply ignored it, issuing a judgment on other grounds. When it leads to a decision a majority of the Court likes, they cite Lemon; otherwise, no.”

    I don’t see that the second statement necessarily follows from the first. I’ve just skimmed a couple of non-lemon based opinions in which it is explicitly stated that they find lemon inapplicable, and at least based on a cursory reading it isn’t apparent to me that that assessment is unreasonable. for example, one was wilkinson which addresses the specific problem of balance between the free expression and estab clauses in a situation (imprisonment) which seems inherently to involve violation of the entanglement test. ie, using lemon would unfairly bias the result against the religious interest.

    as to J scalia’s opinion re lemon, I might entertain your opinion re lemon, but I weight his opinion zero on any estab clause case since my assessment of his relevant dissents I’ve read is that he is hopelessly biased by his own religious posture. like will rogers, he apparently “never met a [pro-religious government action] he didn’t like”.

    -charles

  19. #19 Ed Brayton
    January 15, 2007

    ctw-

    I absolutely disagree with the standard that Scalia would apply to establishment clause cases, but it does not logically follow that therefore his criticisms of the Lemon test are wrong or shouldn’t be taken seriously.

  20. #20 Dave S.
    January 15, 2007

    Dan says:

    I think that Lemon should be overruled, and it should be replaced with _______________.

    Oranges….cause I like oranges. :)

  21. #21 Nick (Matzke)
    January 15, 2007

    I think people are misunderstanding the purpose prong. There is a difference between:

    1. Promoting a governmental action because you are motivated by religion (having the government help the poor for example)

    …versus….

    2. Having the purpose **of getting the government to promote your religious view.**

    Only #2 is what the Supreme Court has barred with the purpose prong.

    The phrase “religious purpose” is too vague because it can mean either #1 or #2, the phrase “purpose of promoting your religious view” is better. I think the courts pretty consistently talk about #2 but clearly this is misunderstood a lot in public discussions.

  22. #22 George
    January 15, 2007

    Ed, an excellent analysis, very thorough. Thanks for the continued effort.

  23. #23 ctw
    January 15, 2007

    “it does not logically follow that therefore his criticisms of the Lemon test are wrong or shouldn’t be taken seriously.”

    you are, of course, quite right. but I was responding in kind – kersham expressed his disdain for lemon w/o elaboration other than concurrence with J scalia, I demurred to that “line of argument”.

    “I think pretty much everyone who has studied the subject would agree that establishment clause jurisprudence is a big mess … the court sometimes uses the tests they’ve articulated and sometimes they don’t.”

    I second dan’s challenge. of course, J scalia and J thomas have a simple rule: if it’s not a federal literal “establishment”, no prob. those who don’t subscribe to that rule are invited to come up with one that is somewhat more expansive but relatively simple.

    “This incoherence has given us constitutional doctrines that say that displaying the ten commandments outside the courthouse is fine, but inside the courthouse is not.”

    obviously, you know that is not what those cases decided. in googling on this general topic, I stumbled upon two postings by people who predicted split decisions on those cases; clearly some are able to find a degree of coherence.

    “Or that displaying the nativity on public grounds is okay as long as you throw in a few giant candy canes and a nutcracker or two.”

    cute, but equally unhelpful – which you obviously know better than a non-lawyer who follows this as a hobby. why the departure on this topic from your usual admirable rationality and balance?

    “Scalia’s brilliant concurrence in Lamb’s Chapel hit the nail on the head – the Lemon test is like a late night movie ghoul that the court keeps around for use when it needs it.”

    you no doubt don’t remember, but we previously went thru this “is not, is too” exchange re J scalia’s “brilliance” (possibly even re lamb’s chapel – the details of the exchange I don’t recall either). his prose is admittedly often entertaining, but his basic approach is pretty straightforward: narrow interpretation, follow history and tradition, majority wins. to me, brilliance is actually implementing the delicate balancing of the dictates of the two clauses in difficult, ambiguous situations, not composing snarks – even especially literate ones – because a simplistic “rule” just happens to yield results consistent with one’s religious posture.

    -charles

  24. #24 Ed Brayton
    January 15, 2007

    ctw-

    Dan’s challenge is an interesting one, and one that he and I will no doubt spend many an entertaining lunch discussing for years to come, as well as one I’m happy to entertain suggestions on here. But I don’t think it does much of anything to answer the criticisms of the Lemon test (nor does he present it as such, just as an interesting academic exercise). Nor does it do much to dispute the fact that our establishment clause jurisprudence is an incoherent mess, which I know Dan agrees with completely. He tells his con law classes exactly that, and indeed uses some of the very examples I used in doing so. Nor indeed does the fact that the outcome of the two Ten Commandments cases was predictable – I predicted that outcome myself – mean that the Court’s establishment clause jurisprudence is coherent; it was only predictable in the sense that one knew they would attempt to split the baby.

    As for Scalia, I called one of his concurrences brilliant; I stand by the use of that adjective. That hardly means everything he does is brilliant, especially in light of the fact that I’ve probably written something in the range of 50,000 words over the last few years being highly critical of the incoherency of Scalia’s own jurisprudence. I only wish that he was nearly as consistent as you seem to think he is; if he was, many of those criticisms I’ve made would not apply.

  25. #25 ctw
    January 16, 2007

    ed –

    well, it would clearly be presumptuous for me to argue further with you and – indirectly – a con law prof. so I’ll just say that given the subtlety of the issues presented in those opinions I’ve read, it totally escapes me how one would structure an approach that is more algorithmic, which is what I assume you mean by “coherent”. that I don’t see how, of course, means nothing, but the fact that some pretty savvy folks have struggled with this issue for the last half-century or more and haven’t done better suggests to me that a more coherent – but satisfactory – approach is an awesome challenge.

    as for J scalia’s consistency, my view of his specific jurisprudence is limited to a few estab clause cases, lawrence, and a random talk/article or two on this subject. within that narrow window, I find him consistent and explicit in suggesting that the majority has a right due to tradition (at least his interpretation thereof) to shove religious views – especially christian morality – down your throat short only of legislating a specific religion as the official national one. of his inconsistency re other legal areas I neither know nor care.

    tnx as always for responding.

    – charles

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