Larry's Plea for Attention

I received the following e-mail from Larry Fafarman:

Ed,

It is easy for you and your pals to take cowardly potshots at me from the safety of your blog, where I am banned. So I am challenging you to either unban me on your blog or debate me on my blog.

Larry Fafarman

What is it about right wingers thinking that if you don't play by their rules you're a "coward"? Larry, Larry, Larry. You're banned here because you annoy me. It's my blog, which means I get to ban anyone I want for any reason I want. You started your own blog just so you could respond to me. I've even been nice enough to link to it about 20 times so far, even if only to point out your obvious mental illness. You write on your blog, I'll write on mine.

Meanwhile, Larry has also posted this silly essay about expert testimony in cases dealing with creationism, where he cites the fact that the district court did not allow expert testimony in Edwards v Aguillard. Uh, Larry, there's a reason for that - the district court in Edwards (It was actually known as Aguillard v Treen at the time) didn't allow any testimony - the case was decided by summary judgment. He makes a big deal out of the fact that while the 1981 McLean case allowed expert testimony, the 1987 Edwards case did not.

Things changed radically in Edwards v. Aguillard(1987). In that case, the district court judge refused to hear a "Monday morning battle of the experts" and the Supreme Court agreed with that refusal. The majority opinion said (pages 595-596),

The Louisiana Legislature did hear and rely on scientific experts in passing the bill, but none of the persons making the affidavits produced by the appellants participated in or contributed to the enactment of the law or its implementation. The District Court, in its discretion, properly concluded that a Monday morning "battle of the experts" over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law.

As usual, Larry completely misreads the opinion. Notice that the statement from the court is very specific in saying that expert testimony would not illuminate the purpose of the Louisiana legislature when it made the law. Why is this important? Because the district court's ruling considered only the purpose prong of the Lemon test, not the effect or excessive entanglement prongs. And of course, both courts are correct - if you're only going to consider the question of the legislature's purpose, you do not need expert testimony to do that, you need only look at the legislative history of the bill, the statements of the sponsors, whether that stated purpose aligns with the text of the statute, and so forth. You don't need expert testimony on that question because it's strictly a legal and factual question, not a scientific one.

Was this really a "radical change" with McLean? Of course not. The district court in McLean had challenges before him based on both the purpose and effect prongs of the Lemon test. In determining the effect prong, however, expert testimony on such questions as the nature of science, the nature of creationism, whether there is actually data to support creation science, and so forth, is obviously germane and important. The same was true in the Dover case, where the plaintiffs were arguing for violations based on both prongs of the Lemon test and therefore expert testimony was appropriate.

The Supreme Court is not arguing that courts should not take expert testimony any time it involves evolution or creationism. They're only saying that the court was correct that it did not need to take expert testimony in order to settle the question of the purpose prong. In the Dover case, if you look at the section of the ruling dealing with the question of whether the case violated the purpose prong you will notice that it deals almost exclusively with the testimony of the fact witnesses, not the expert witnesses.

The purpose inquiry considered the things one obviously would consider in such a circumstance - statements by the school board leading up to the passing of the policy that obviously indicated their goal of promoting creationism (including statements to the press to that effect on videotape, despite the board member's denial of having made any such statement), the fact that they had questioned and confronted teachers about "balancing" the teaching of evolution with creationism, the fact that they lied to cover up the origin of the money to purchase the textbooks, and so forth. Judge Jones didn't need to refer to expert testimony to conclude that the board acted for a religious purpose, all he needed was the fact witnesses' testimony - just like in Edwards.

Unfortunately, the courts in later cases did not follow Edwards' lead of refusing to hear the testimony of expert witnesses who had played no part in directly influencing the government policies.

But again, Larry is badly misreading what the court said. The court said it didn't need expert testimony to deal with a purpose inquiry, not that it didn't need expert testimony to deal with other legal questions that might arise in such cases. Larry's ability to misrepresent court rulings appears to be virtually limitless.