Summary Judgment in the California Creationist Case: The Lawyers for the Creationists Argue Like Creationists (Part 2 of 3)

(This is Part 2 of a three part post on Friday's summary judgment ruling in the ACSI v. Stearns creationism lawsuit. Part 1 is here; Part 3 will be up later today.)

If you read Judge Otero's ruling on the summary judgment motions in the California Creationist Case, you'll see that he discovered something that most of us already know: if you're looking for dubious argument tactics, you'll almost always find them when you're reading things written by professional creationists. In the case of the California lawsuit, the Christian schools are being represented by the law firm of Wendell Bird. Bird is no stranger to creationism battles - he served as the general counsel for the young-earth creationist Institute of Creation Research, threw a wrench into Arkansas' efforts to defend it's pro-creationsim policies in the McLean v. Arkansas case, and represented Louisiana's interest in promoting religion during the Edwards v. Aguillard case. After so much time spent working on behalf of creationist groups, it probably shouldn't be surprising that Judge Otero spotted many of the same argument tactics in the Christian schools' legal filings that we see when we look at the day to day output of anti-evolution groups such as the Discovery Institute.

There are some real gems scattered through the ruling. I'm just going to hit on a few of the high points.

Let's start with that most common of creationist techniques: the quote mine. Quote mining, if you're not familiar with the term, refers to the practice of hunting through volumes of documentation in search of a few words that, if taken out of context, might appear to support your argument.

For example, Plaintiffs cite the deposition of Defendants' government expert as evidence that "UC follows the policy of rejecting any course in any subject, even if it teaches standard content, if it adds teaching of the school's religious viewpoint." The actual deposition testimony illustrates Plaintiff's error. ...

(page 8)

In addition, the power of Plaintiff's quotation is tempered by their omission of the words "radical" and "fundamentalist." These adjectives suggest the Board's "feelings" concerned extreme views inconsistent with knowledge generally accepted in the relevant academic community rather than antagonism toward religion.

(page 26)

This conclusion is supported by the Broadrick passage from which Plaintiffs selectively quote; it discusses prior restraints. ... Moreover, the four cases the Supreme Court cites in support of Plaintiffs' selective quotation from the Broaderick opinion all involved licensing statutes.

...

The correct interpretation of the Plaintiff's Broadrick quote is not that standardless discretionary power creates a prior restraint, but that standardless discretionary power makes existing prior restraints "virtually unreviewable."

(page 30)

This sort of thing really makes you wonder what Bird and his people were thinking. Have they really failed to figure out that smart people - a group that, popular perception notwithstanding, includes the bulk of the Federal Bench - check the references?

Moving along, we come to another perpetual creationist favorite: the straw man. Although it could reasonably be argued that the whole of the Christian schools' position falls into this category, there was one particular instance that caught the judge's eye:

Plaintiffs spend much of their briefing setting up a "viewpoint discrimination" straw man. But, the analysis in this case is not as simple as Plaintiffs' proffered syllogism: "Viewpoint discrimination is unconstitutional and UC discriminates based on viewpoint, therefore UC's actions are unconstitutional." Accordingly, Plaintiffs' "resounding" success in tearing this straw man down rings hollow. (See Pls.' Reply 3 ("UC's silence is resounding on our 22 pages of facts and argument showing that UC policies . . . discriminate by viewpoint and are content-based in regulation.").)

(page 12, footnote 8)

That last quote is actually almost a buy-one-get-one-free example of bad argument techniques. Besides the strawman, it also contains the "lots of bad arguments must add up to something good" line of defective reasoning.

Bird's crew wasn't content to stop with merely bad tactics. They apparently decided that it was a good to bring the paranoia to the party.

The first example of paranoiac tendencies showed up early on, when the judge noted that Bird and his colleagues seemed to be suggesting that there was an organized conspiracy against them:

Plaintiffs allege that Defendants, in applying the A-G Guidelines, have established a set of binding "A-G Policies" that are used to routinely deny courses submitted by religious high schools. The official-sounding term "A-G Policies" is a label Plaintiffs created to describe what they believe are secret rules by which Defendants deny Plaintiff's courses. (Pls.' Opp.n 3.) The extent to which these "A-G Policies" exist is discussed in Part II.A of this Order.

(page 3).

The judge found that none of the three specific policies that the Christian schools alleged were being used against them actually existed.

The second instance of paranoiac tendencies is a bit more troublesome. The Plaintiffs appear to believe that not being Christian is evidence that you are biased against Christians. They submitted a list of actions and beliefs that they allege demonstrate that UC disapproved of their religion. One of the items that they included as evidence of the official state bias against them is that:

(5) "The senior reviewer is Buddhist, and the reviewer who handled religious school science courses and drafted most policies is Jewish..."

(page 44.)

Asserting that non-Christian religious beliefs is evidence of hostility toward Christianity is quite simply wrong-headed. It relies on the assumption that everyone has the same hostile attitude toward other religious beliefs that they seem to consistently exhibit. It also relies on the assumption that they can only receive a fair hearing from like-minded people. The judge handled that last bit quite well:

Additionally, allegation (5) cannot support a hostility claim. UC is under no duty to employ only those individuals whose religious beliefs coincide with Plaintiffs.

It's fun to look at the logical fallacies that Bird and his colleagues attempted to slip past the judge, but this really isn't all fun and games. It's important that we keep in mind that the more paranoid aspects of the Christian schools' argument probably aren't being advanced purely as a way to push their own views. There are a lot of people out there who really do believe that it is not merely unreasonable for us to insist that they not use the government to push their views on us, but that our attempt to preserve our own religious freedom is an attempt to persecute them. Their viewpoint is so divergent from ours that there is simply no way that this conflict is going to end soon, or nicely.