Timothy Sandefur posted Entry 1326 on August 11, 2005 12:48 PM.
Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.fcgi/1324

The Defendants’ motion for summary judgment and the plaintiffs’ opposition are in. The opposition is so good that I don’t have much to add. Let me just clarify some things first for those who aren’t fluent in legalspeak.

A motion for summary judgment is a request that the judge not hold a trial. Summary judgment is granted when there is no dispute as to the factual issues in a case. This is a bit different from, say, a motion to dismiss, which is where one side argues that it should win regardless of what the facts might be, for some legal reason. A motion for summary judgment does depend on the evidence in many cases; it’s just a way of bypassing the trial and saying “all the facts are settled, let’s get on to the decision.”

In the Dover case, the defendants (that’s the school board that approved the use of a creationist textbook and required that students have a disclaimer read to them before studying evolution), have moved for summary judgment arguing that there’s no need for a trial, because all that happened here was that the local school board made a small change in its curriculum to “balance” things, and teach “both sides” of the “controversy” and whatnot. The plaintiffs—parents concerned with science education—have filed an opposition to the summary judgment motion, because they want to have a trial.

The defendants make just about the best argument they could under the circumstances. This isn’t a violation of the Establishment Clause, they argue, because it’s a “modest curriculum change” which has a valid secular purpose of “broaden[ing] a students’ [sic] access to knowledge and information by making students aware of intelligent design and placing a book in its high school library as a reference for independent study and inquiry—a laudable and secular educational goal.” (p. 16). As to the overwhelmingly religious context in which that policy was adopted, all of that stuff took place outside of the school board’s recorded deliberations, and is therefore irrelevant: “it is the purpose of the modest change to the curriculum that matters—not the motives of certain school board members who voted for it.” (p. 12) So, even if board members voted for the provision for personal religious reasons, that doesn’t make the policy a violation of the Establishment Clause. To support their contention that the purpose of the policy is a secular one, the Board points out that they are not teaching ID in the classroom—they’re just telling students that they can find a book in the library about ID, and “the Darwinian theory of evolution is the only such theory taught….” (p. 13) And in addition to the secular purported goal of “broadening access to knowledge,” the school’s policy also, among other things, “rais[es] students [sic] awareness about multiple ways of knowing.” (p. 18)

I love that line. “Multiple ways of knowing” is one of those phrases that should always set off your Bullshit Alarm.

The most interesting part of the argument, I think, is the Board’s contention that the (many) religious statements of the creators of the Board’s policies cannot be used as evidence of a sectarian intent or effect in the school’s policy—e.g., “whatever message was conveyed by the personal expressions of certain board members during the deliberations related to this curriculum change, that personal message cannot be ascribed to [the Board].” (p. 19). For this proposition, they cite several cases, including Bd. of Ed. v. Mergens, 496 U.S. 226, 249 (1990). In Mergens, the Supreme Court upheld the constitutionality of a law requiring, as a condition of receiving federal funds, that government schools allow religious clubs to use those school facilities. The Court held that the law was constitutional even though some of the members of Congress who voted for it did so for religious reasons:

Congress’ avowed purpose—to prevent discrimination against religious and other types of speech—is undeniably secular. Even if some legislators were motivated by a conviction that religious speech in particular was valuable and worthy of protection, that alone would not invalidate the Act, because what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law. Because the Act on its face grants equal access to both secular and religious speech, we think it clear that the Act’s purpose was not to “‘endorse or disapprove of religion,’”

Id. at 249 (citations omitted).

Now, the problem with this is that in many cases, the subjective motivation of legislators is clearly relevant and obviously a proper subject for judicial consideration. This is because it is all too easy for legislators to write pretextual laws that seem on their surface perfectly neutral, but are really written so as to have an improper effect. The classic example of this is Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993), in which the city passed a ban on the slaughtering of animals, so as to discriminate against a religious sect that engaged in animal sacrifice. The Court found that the motivation of the otherwise legitimate law was a proper subject for consideration in addressing a Free Exercise claim.

More recent was the brilliant decision in McCreary County v. ACLU, 125 S.Ct. 2722 (2005), which I personally think is one of the finest Establishment Clause decisions in Supreme Court history. There, Justice Souter defended the common sense fact that substantive adherence to the law requires the Court to avoid an absurdly formalistic approach. In giving a thorough history of the placement and changing of the Ten Commandments monuments in the courthouses, Justice Souter noted that

The Counties…argue that purpose in a case like this one should be inferred, if at all, only from the latest news about the last in a series of governmental actions, however close they may all be in time and subject. But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show. The Counties’ position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer “to turn a blind eye to the context in which [the] policy arose.”

Id. at 2736-37.

Formalism is a very old and complicated debate in the law,* mostly because it uses that favorite lawyer’s turn of phrase: on the one hand, it is true that a perfectly valid law is not made invalid just because legislators voted for it for religious reasons (after all, if a legislature voted to build a firehouse because they thought that God would punish them if they didn’t, that would hardly make that law unconstitutional) but on the other, as Souter put it, “purpose matters,” id. at 2737 n. 14, and you can’t always judge a law just from its superficial, apparent constitutionality.

I’ll open comments for questions.

*–A favorite passage from an article by an author I don’t usually admire: “[O]ne cause of the tendency of scientific law to become mechanical is to be found in the average man’s admiration for the ingenious in any direction, his love of technicality as a manifestation of cleverness, his feeling that law, as a developed institution, ought to have a certain ballast of mysterious technicality…. Every practitioner has encountered the lay obsession as to the invalidity of a signing with a lead pencil. Every law-teacher has had to combat the student obsession that notice, however cogent, may by disregarded unless it is official. Lay hair-slitting over rules and regulations goes far beyond anything of which lawyers are capable. Experienced advocates have insisted that in argument to a jury, along with a just, common-sense theory of the merits, one ought to have a specious technicality for good measure.” Roscoe Pound, Mechanical Jurisprudence (1908) reprinted in Morris R. Cohen and Felix S. Cohen, Readings in Jurisprudence And Legal Philosophy 537 (1951).

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Comment #42168

Posted by Rich on August 11, 2005 1:07 PM (e)

Would anyone care to guess at the legal ramification for either side?

Comment #42178

Posted by Timothy Sandefur on August 11, 2005 1:27 PM (e)

Ramification? You mean, whom do I think will win? I wish I could say it’s a slam-dunk. There is at least an argument that none of the context should be considered. But I think they’re pretty weak arguments, particularly given the decision in McCreary. So my money’s on the good guys winning.

Comment #42182

Posted by Steverino on August 11, 2005 1:32 PM (e)

This is what happens when people who are just plain full of shit are not confronted.

This never should have happened. These people and their proposed ideas should have been brought to light and exposed for what they really are.

This is the fault of the defenders of Evolution who decided not to attend becuase they thought it would give credence and provide a stage for the ID conflict and claim.

We let this happen.

Comment #42183

Posted by rich on August 11, 2005 1:34 PM (e)

I agree, but what about the bigger picture - Is it the beginning of the end of ID?

Comment #42191

Posted by Steverino on August 11, 2005 1:57 PM (e)

Are you joking?…This is a major win in the eyes of ID and religous right!

This sets a precedence for the ID in other states. And, as although this was not a legal decision, many of the decisions local and state gov make, are based on precedence.

We have a unique opportunity now to once and for all, to make the case for evolution and to expose ID and its agenda for what it really is. Lets hope the truth steps up to the plate.

Comment #42192

Posted by Steverino on August 11, 2005 1:57 PM (e)

Are you joking?…This is a major win in the eyes of ID and religous right!

This sets a precedence for the ID in other states. And, as although this was not a legal decision, many of the decisions local and state gov make, are based on precedence.

We have a unique opportunity now to once and for all, to make the case for evolution and to expose ID and its agenda for what it really is. Lets hope the truth steps up to the plate.

Comment #42193

Posted by Rich on August 11, 2005 2:05 PM (e)

You can say that again..
oh…

Comment #42196

Posted by Flint on August 11, 2005 2:09 PM (e)

[quote]This is the fault of the defenders of Evolution who decided not to attend becuase they thought it would give credence and provide a stage for the ID conflict and claim.[/quote]No. Evolutionists showing up would simply be spun as “we heard both sides and made a considered decision” for creationism. This is the result of the makeup of the school board, which was voted in by normal political processes. Any bogus “hearings” are CYA for verisimilitude. We get what we elect. This is the great beauty of a democratic system: If we wish to teach ignorance, we vote for it and by golly, we get it.

Be glad the system has enough checks in it so that corruption at one level can be tossed at another.

Comment #42198

Posted by Aagcobb on August 11, 2005 2:16 PM (e)

I think you have gotten your ID cases confused. This is the Dover, Pa. case in which a local school board decided to tell students about ID; this isn’t the matter concerning changing science standards in Kansas. There was no kangaroo court in Dover which scientists boycotted; the Dover case is in a real court, the United States District Court, before a federal judge, not a bunch of school board creationists.

Comment #42199

Posted by Nick (Matzke) on August 11, 2005 2:17 PM (e)

Steverino,

What are you talking about? Kansas?

Keep in mind that the case in the real court – in Dover, PA – has things like procedures, rules of evidence, and a neutral judge. Both sides have a right to discovery, the power to subpoena relevant documents, and the right to depose all witnesses before the trial, who have to testify under oath. Building the Dover case even to this preliminary stage took nine months and a ton of pro bono work by literally dozens of lawyers, consultants, and experts. None of the documents and depositions cited in the plaintiffs brief above were available to the folks in Kansas, and there would have been no way to get them.

In the Kangaroo Court in Kansas, there were no real rules, no legal standards on which a decision would be made, and none of the evidence-gathering that is necessary and required in a real court case. Furthermore, there were only a few weeks to put together “witnesses” and “a case” in Kansas, there was no particular person or group of people employed or payed to do this (the Kangaroo Court was way beyond the usual procedures in Kansas that people on the science standards revisions committee volunteered for), and the creationists wanted 20+ witnesses on each side. And even if a group of Kansans were able to drop their real jobs for weeks to prepare a “case”, (a) it would have been a pointless food fight that only experts could assess meaningfully anyway, and (b) the “judges” were three explicit creationists, who had clearly made their mind up already. So the result would have been the same, except with the appearance of a “debate” with two equal sides that would get a lot more media attention.

As it was, the “intelligent design” advocates at the Kansas hearings were shown to be overwhelmingly creationists, with just a few simple questions under cross-examination. Given that the Kansas ID Network arranged the whole Kangaroo Court in the first place, this is quite a positive result….I may have to make this a PT entry, I’m not sure anyone has laid all of this out for the remaining “We should have debated in Kansas!” people…

Comment #42203

Posted by Steverino on August 11, 2005 2:30 PM (e)

Yes, Im sorry, didn’t mean to confuse the two. I was, of course, speaking about Kansas.

Comment #42204

Posted by Rich on August 11, 2005 2:34 PM (e)

Nick - a dover vs Kansas comparison would be usefull - maybe even as a table to show the differences.

Legal prcedeeding?
Impartial judgement?
etc.

These ‘one pagers’ are a usefull reference to give to those that wich to be informed.

Comment #42220

Posted by FastEddie on August 11, 2005 3:34 PM (e)

I think that when ID loses this court fight, it will be the end of ID as we know it. The whole purpose behind this movement is no different than it was for creationism: reduce evolution content in the public schools and increase the God content.

“Scientific Creationism” isn’t pushed anymore (hardly) because of Edwards. In its defeat the SCOTUS said it might have been okay had it actually been a scientific concept. This is why scientific creationism was renamed ID, given a shiny but shallow scientific veneer, and a great marketing campaign. When ID is defeated, it will reinvent itself in an attempt to squeek through whatever legal loopholes are created in this case.

Comment #42221

Posted by FastEddie on August 11, 2005 3:39 PM (e)

When ID is defeated another possibility is that the religious right will simply try to amend the constitution to allow religious instruction in public schools. Then they could bring Creationism Classic in through the front door.

I think this is a real possibility. Creationism was defeated because it was overtly religious. ID will be defeated because it is covertly religious. Proponents will only be left with two options at this point: (1) produce genuine scientific research that supports ID, or (2) change the rules to let creation into the schools.

Comment #42228

Posted by Nick (Matzke) on August 11, 2005 3:58 PM (e)

To add a bit of balance I have uploaded the Defense Answer to the Complaint and the Defense Brief in Support of the Motion for Summary Judgement to the Kitzmiller webpage.

Comment #42250

Posted by kay on August 11, 2005 4:50 PM (e)

I think that the danger at this point is that after ID is defeated in court, the laws will be changed, at which point we’ll have some other flavor of creationism mandated in schools anyway.

Comment #42263

Posted by Timothy Sandefur on August 11, 2005 6:02 PM (e)

There will never be a day, never, when the creationism/evolution controversy is at an end, and there will never be a day when creationists stop trying to put their old nonsense in new wineskins for smuggling into the classroom. This is probably something for which we should be grateful, in a sense; as Madison says in Federalist 10, you can solve the problem of faction by starving it of liberty, but then the cure is worse than the disease.

I think it’s overstating the case drastically to say that this would be the end of the ID movement if the bad guys were to lose here. But it would be a huge hole in their hull, and would force them to bail like hell.

The Kansas hearings, so far as I know, are legislative hearings, and must not be confused with a judicial hearing. The difference is that in the latter, lies are proscribed (de jure), while in the former, they are subsidized.

Comment #42266

Posted by 'Rev Dr' Lenny Flank on August 11, 2005 6:21 PM (e)

I think that when ID loses this court fight, it will be the end of ID as we know it. The whole purpose behind this movement is no different than it was for creationism: reduce evolution content in the public schools and increase the God content.

“Scientific Creationism” isn’t pushed anymore (hardly) because of Edwards. In its defeat the SCOTUS said it might have been okay had it actually been a scientific concept. This is why scientific creationism was renamed ID, given a shiny but shallow scientific veneer, and a great marketing campaign. When ID is defeated, it will reinvent itself in an attempt to squeek through whatever legal loopholes are created in this case.

I agree, Dover will kill ID dead, jsut as Aguillard killed creation “science” dead.

As for other legal loopholes, the fundies are quickly running out of options. They have already tried to argue that evolution was religion, and lost. They have alrready tried to argue that creationism is science, and lost. They have already tried to argue “teach the controversy”, and lost. They are now arguing that ID isn’t creationism, and they will lose.

What is LEFT for them to argue?

Comment #42267

Posted by 'Rev Dr' Lenny Flank on August 11, 2005 6:23 PM (e)

I think that the danger at this point is that after ID is defeated in court, the laws will be changed, at which point we’ll have some other flavor of creationism mandated in schools anyway.

At which point the US will be a theocracy, not a democracy. Under those circumstances, “law”, “the constitution” and “courts” will no longer matter anyway.

At that time, we are justified, I think, in doing whatever it takes, by whatever means may be necessary, to restore democracy and the rule of constitutional law.

Comment #42268

Posted by 'Rev Dr' Lenny Flank on August 11, 2005 6:25 PM (e)

There will never be a day, never, when the creationism/evolution controversy is at an end, and there will never be a day when creationists stop trying to put their old nonsense in new wineskins for smuggling into the classroom.

Yes and no. Certainly, ID and creationuts are never going to go away. Hevck, there are still GEOCENTRISTS around — they will never go away either. (shrug)

But as an effective political movement, Dover will be ID’s death knell. And they know it.

Comment #42279

Posted by steve on August 11, 2005 7:36 PM (e)

It will be a pretty sweet day when ID is held to be creationism. Because afterward, the reformulated movement will have to jettison Dembski, Meyer, Behe, etc. as tainted, much as the ID movement, formed in the wake of Edwards v Aguillard, had to ditch the SC leaders like Gish. All the young wackos currently forming ID clubs will also be tainted. Do you know how many people that is? And what will all these IDers do? There’s no use for them to participate in the next round of renamed pseudoscience, since they’d damn it by association. I think they’ll be forced to drop the charade and push for sectarian school vouchers or something.

Comment #42307

Posted by Nick (Matzke) on August 11, 2005 9:56 PM (e)

While the Dover case will clearly be very important, even “intelligent design” may well remain popular until a case reaches the Supreme Court. After all, McLean was a devastating federal court decision, but it wasn’t until after the Edwards case that the creationists gave up on “creation-science.”

If SCOTUS ever rules against ID creationism, creationism won’t disappear. As has happened several times before, it will evolve. “Weaknesses of Evolution” is the future.

Comment #42312

Posted by 'Rev Dr' Lenny Flank on August 11, 2005 10:00 PM (e)

“Weaknesses of Evolution” is the future.

They already lost that one, in Cobb County.

Comment #42313

Posted by 'Rev Dr' Lenny Flank on August 11, 2005 10:05 PM (e)

While the Dover case will clearly be very important, even “intelligent design” may well remain popular until a case reaches the Supreme Court. After all, McLean was a devastating federal court decision, but it wasn’t until after the Edwards case that the creationists gave up on “creation-science.”

Yes. I am assuming that the Dover case will go to the Supreme Court. Where the IDers will lose. Badly.

Unless the Kansas Klowns get there first. And lose. Just as badly.

Or Maybe Buttars and his “Divine Design” will beat them all there. And lose. Even more badly.

The nutters do seem to be trying very hard to out-do each other in their rush to lose in court.

I almost feel sorry for DI. They spent YEARS and MILLIONS trying to set up their carefully-mapped scam, only to have it all come undone because of the actions of a few idiotic rubes who took DI at its word that they actually have a “scientific theory of ID”.

(snicker) (giggle)

Comment #42316

Posted by Ed Darrell on August 11, 2005 10:13 PM (e)

Mr. Sandefur said:

The Kansas hearings, so far as I know, are legislative hearings, and must not be confused with a judicial hearing. The difference is that in the latter, lies are proscribed (de jure), while in the former, they are subsidized.

Legislative bodies aren’t allowed much leeway to jigger the results when the courts review, especially state legislatures. But administrative agencies are allowed even less leeway. There must be a rational basis established for a ruling.

The Kansas school board knows, or should know, that they don’t have a good, bona fide hearing record upon which to base a gutting of evolution in the state standards.

It may be a trick to convince a court to do its duty, of course. But administrative law does not permit despotism on the basis of a flawed hearing record. The hearings in Kansas clearly did not incluce a balanced view of the science, nor were they fair in any sense. The refusal of scientists to participate because of the lack of fairness is a clear indictment of the hearings, and served as legal warning to the Kansas board NOT to act on the hearing “record” as it exists.

Should they act anyway, any state or federal court that reviewed the rule would be justified in striking it down on several grounds, but chiefly because there is no rational basis to go after evolution. The heavy religious overtones of the testimony doesn’t help Kansas, either.

I’m guessing Kansas won’t have the benefit of a decision in the Dover case before they screw up act.

The question is, who will have standing to sue?

Lies may be invited into a legislative or adminstrative hearing, but the courts do not turn a blind eye to lies when it’s clear to everyone that they are lies.

Mr. Sandefur, or anybody else: Do you know whether there will be a jury in the Dover case?

Comment #42337

Posted by Wesley R. Elsberry on August 12, 2005 12:26 AM (e)

FastEddie wrote:

“Scientific Creationism” isn’t pushed anymore (hardly) because of Edwards.

That’s an interesting statement. Now for the hard part… can you back it up? Please identify any argument made by “intelligent design” or “teaching the controversy” or “stengths and weaknesses” that was NOT present in some form in SciCre. I don’t think that you can do it, primarily because I don’t think that I can do it. “Intelligent design” is simply a different label for the same old antievolutionist playlist of arguments. Just because you don’t cover “My Sweet Lord” doesn’t mean that you are immune from a copyright infringement suit if you do cover the rest of “All Things Must Pass” and try to sell it under a different title.

Comment #42342

Posted by Nick (Matzke) on August 12, 2005 1:40 AM (e)

In reply to a coupla things:

1. The Dover case will be decided by a judge, not a jury. This appears to be standard for constitutionality cases, I assume because the primary matter is a matter of law rather than guilt or innocence.

2. Whether or not the Kitzmiller case is appealed may depend on the composition of the school board in Dover, which could change after the election in November. Since William Buckingham, the primary guy who was pushing ID in Dover, has recently moved out of the state, this might also change things. Hard to predict.

3. The Selman decision in Cobb County went against the evolution warning labels, but the decision has been appealed and the eleventh circuit is very conservative, so it’s not over yet by a long shot. And there are clearly other antievolution strategies besides the language on the Cobb sticker, e.g. the language used in Kansas, which incorporates several post-Selman modifications if I recall correctly.

Comment #42397

Posted by JPD on August 12, 2005 10:54 AM (e)

regarding Rev Dr. Lenny’s post - Read or re-read Heinlein’s “Revolt in 2100” for a look at what could happen if the ID’rs win… and a theocracy replaces democracy here in the US.

Actually I think ALL us good guys should read or re-read it in light of what might happen if we turn a “blind eye” to the ID knuckelheads or take them too lightly… Are you listening Dr. Hawks?

Comment #42399

Posted by Timothy Sandefur on August 12, 2005 11:09 AM (e)

The case cannot be heard by a jury because juries are not available for cases seeking an injunction. See, there’s a federal law called 42 U.S.C. 1983 (the Civil Rights Act), which allows you to sue state officials, in their official capacity, when they act under color of state law to deprive you of a federally protected right. So when the cops search your house without a warrant, for instance, you can sue them in federal court instead of state court, under this rule.

In some cases, including this case, a plaintiff will ask for an injunction–a court order forbidding the defendant from doing something. In this case, the plaintiffs are asking for an injunction to forbid the state officials from violating the Establishment Clause by enforcing the ID policy.

But there’s a rule that says that you can’t have a jury when you’re asking for an injunction, only when you’re asking for damages. This goes back to the old common law days. At the time the Constitution was written, courts were divided into the law courts and the equity courts. If you wanted money damages, you would go to a law court. If you wanted an injunction, you would go to an equity court. You could only have juries in law courts, not equity courts. Nowadays the two kinds of courts have been combined. But you’re still only entitled to a jury trial in cases seeking “law”-type remedies–that is, money damages–not in cases seeking “equity”-type remedies, such as an injunction.

Mr. Darrell is, of course, right that I was exaggerating when I said legislatures can get away with whatever they want in hearings. A legislative act must be at least rationally related to a legitimate state interest. In Establishment Clause cases, it has to be even more than that. But it’s still true that legislative committees get away with a bunch of bull that wouldn’t pass muster in any sensible world. It is, alas, simply not true that “administrative law does not permit despotism on the basis of a flawed hearing record.” It allows this all the time.

As for who has standing in the case of Kansas writing a creationism policy, well, that’s actually not that big a problem. Federal courts allow taxpayer standing in cases asserting Establishment Clause violations. What that means is this: standing is the rule that says you can only sue if you have been injured in some way. You might want to sue the government for spending your tax dollars on something they have no constitutional authority to do, such as, say, the Department of Education. After all, you’re being injured, in the sense that you’re being taxed. But federal courts don’t allow taxpayers to assert standing on that basis–except then they are asserting a violation of the Establishment Clause. There, and only there, can you use your taxpayer status to get into federal court. (States have different rules; in California, for instance, there’s taxpayer standing for lots of things.) See further Richard A. Epstein, Standing and Spending - The Role of Legal and Equitable Principles, 4 Chap. L. Rev. 1 (2001).

I think ‘Rev Dr’ Lenny Flank is wrong to say that, if ID creationism is allowed in government schools, “the US will be a theocracy, not a democracy.” It’s certainly true that this would violate the Establishment Clause, but remember, for many, many years, we had government schools teaching creationism, and America was not properly describable as a theocracy. I think teaching ID creationism in the classroom would be deplorable, and blatantly unconstitutional, but I don’t think it would be quite as bad as theocracy. A major step in that direction, yes.

Comment #42427

Posted by Kenneth Fair on August 12, 2005 1:46 PM (e)

In response to Nick Matzke: In civil cases in federal court, a litigant has the right to a jury only if monetary damages are sought; otherwise, the case is tried to the judge. See Curtis v. Loether, 415 U.S. 189, 193 (1974). In the Dover case, the plaintiffs are asking for declaratory relief (“What they’re doing is wrong”) and injunctive relief (“Make them stop”), so they’re not entitled to a jury. (The plaintiffs are also asking for nominal damages ($1) and attorney fees, but these don’t count either.)

There’s essentially three components to a legal decision at the trial level. The judge decides what law will apply to the situation. The factfinder, which may be the judge or a jury, decides any disputed facts. The judge then takes the factfinder’s verdict and applies the law to it, creating a judgment.

Regardless of whether a trial is jury or non-jury, a summary-judgment motion is always heard and decided by the judge. A summary-judgment motion is a motion by one party that says there is no material issue of fact for the factfinder to decide. In other words, based on the law that will apply, all of the facts are either undisputed or immaterial to the outcome, and thus the judge can decide the case and render judgment without holding a trial.

Comment #42446

Posted by Mona on August 12, 2005 3:16 PM (e)

Mr. Sandefur: Having just reread Scalia’s dissent in Edwards v. Aguillard, in which Rehnquist joined him,I am fretful. That ‘87 decision was 7-2. The High Court is now quite differently constituted.

And I write as a libertarian who generally approves of GOP-appointed judges/justices, for reasons other than Establishment Clause cases.

Scalia and Rehnquist would overturn Edwards, and have no truck with assessing the motives of legislators in this context. If the legistalting body articulates a plausible secular motive, those two readily accept it; indeed, they believe the Court must accept it.

Further, they were persuaded that Scientific Creationism is science, because some scientists said it was. As you are aware, there are scientists who will and do say ID is science.

Thomas, of course, breaks from Scalia sometimes. Perhaps he would here. Assuming Roberts ascends to the High Court bench, it is hard to know what he would do.

It seems to me we could end up winning all the way up through the 3rd Circuit, only to have the debacle of the SCOTUS overturning Edwards. Your thoughts?

Comment #42516

Posted by 'Rev Dr' Lenny Flank on August 12, 2005 7:20 PM (e)

It seems to me we could end up winning all the way up through the 3rd Circuit, only to have the debacle of the SCOTUS overturning Edwards. Your thoughts?

I see virtually no chance that the Court will overturn Aguillard. The Republican leadership simply doesn’t want it. They’re quite happy to pay lip service to all the loonies, to keep getting their votes and money, but when it comes ot actually delivering, the Republicans have flat out told the fundies to go screw themselves. The corporados run the Republicans (as they do the Democrats) and the corporados don’t want a theocracy. It’s bad for business.

Comment #42517

Posted by 'Rev Dr' Lenny Flank on August 12, 2005 7:23 PM (e)

I think ‘Rev Dr’ Lenny Flank is wrong to say that, if ID creationism is allowed in government schools, “the US will be a theocracy, not a democracy.” It’s certainly true that this would violate the Establishment Clause, but remember, for many, many years, we had government schools teaching creationism, and America was not properly describable as a theocracy. I think teaching ID creationism in the classroom would be deplorable, and blatantly unconstitutional, but I don’t think it would be quite as bad as theocracy. A major step in that direction, yes.

I think you should take a long hard look at the openly-stated goals of the creationist/ID movement:

http://www.geocities.com/lflank/fundies.htm

http://www.geocities.com/lflank/wedge.html

What they want is theocracy. With themselves as “theo”. Right now, the ONLY thing stopping that is the courts. If we lost that, we lose, period. At that point, nothing in the democratic process will be able to stop them.

Comment #42518

Posted by 'Rev Dr' Lenny Flank on August 12, 2005 7:25 PM (e)

regarding Rev Dr. Lenny’s post - Read or re-read Heinlein’s “Revolt in 2100” for a look at what could happen if the ID’rs win… and a theocracy replaces democracy here in the US.

No need to read fiction —– the fundies have always been openly willing to tell us *exactly* what they want to do:

http://www.geocities.com/lflank/fundies.htm

Comment #42532

Posted by SEF on August 12, 2005 8:07 PM (e)

mismatched tag ‘kwickxml’

I’ve been seeing quite a few of these terse comments which look like error messages but don’t match what people have recently posted. Is there some sort of bug causing them? Has the real intended content been lost?

Ah, it just happened to me on preview - a “mismatched tag ‘quote’” replacement for my entire post because I’d put a post number next to the = in the quote tag.

Comment #42575

Posted by ts on August 13, 2005 6:22 AM (e)

I’ve been seeing quite a few of these terse comments which look like error messages but don’t match what people have recently posted. Is there some sort of bug causing them? Has the real intended content been lost?

Paraphrasing President Slick, it depends on what “bug” is. It’s certainly poor design and terrible human factors engineering, but it’s not going to change because they’re using a standard Perl XML parse module. My advice is to always preview if you’ve used a tag. As for the real intended content, I believe it’s stored on the server, but we can’t expect the PT administrators to go in and fix our typos.

Comment #42581

Posted by SEF on August 13, 2005 7:23 AM (e)

Then I suppose I’ll never know what possibly insightful or inciteful thing was said by various people who probably never looked back down the page to see what had actually been displayed instead of their intended comment (or at least never posted another version after the failed one which would indicate that they had noticed), eg I think there was one such from someone going by the name Shiva. Initially the error messages, ie the quote ones, looked like they might have been people pointing out their own or other people’s failures in earlier posts but there were some which I just couldn’t match to any occurrance of a missing quote tag etc.

Comment #43428

Posted by Sir_Toejam on August 17, 2005 2:52 AM (e)

Lenny posted, if the worst happened and the US essentially became a theocracy:

“At that time, we are justified, I think, in doing whatever it takes, by whatever means may be necessary, to restore democracy and the rule of constitutional law.”

I hate to break it to you, but while not any kind of true theocracy, the current administration has been doing everything it can to weaken the only remaining obstacle you mention, the legislative branch, utilizing arguments from theology and anything else they can spin up. sometimes it backfires on them a bit, like with the terry shiavo debacle, but the strategy is obvious if a bit blunt. it certainly isn’t that they want to put radical right wing christian bumpkins in charge of the country, as you rightly mention the slapdowns they get when they get too uppity, but there is a definite erosion of our consitution and and rule of law that has occured under the Neocons, and i don’t see this ending any time soon. No; the radical right is only used as a political base because it is very consistent, and easily motivated into action.

I for one, would happily walk down that road with you when the time comes, which will of course have less to do with our governments’ actions, and much more to do with the people finally realizing the extent to which their country’s true ideals are being erroded underneath them.

However, do you think there are enough americans left who actually would do anything to stop the erosion this time around? with all of the negative hype surrounding the words “liberal” and “hippie” that those of us born in the 60’s or later have been exposed to.. all the government has to do is identify any anti-government movement with “liberals” or “hippies” or, god forbid, the dreaded liberal-hippie (gasp!) and support will wither.

let’s analyze this a second. I believe the direction in government is towards a radical revision of government away from that based on what is written in our constitution. I think there is quite of bit of support for that argument, simply from the actions the current government has taken since even before GW was in office.

am i right or wrong, you think?

If i am right…

I believe there exists insufficient informed populace with insufficient motivation to change this (having mostly been programmed to ignore it, or even denounce those who discuss it as “traitors”)

am i right or wrong?

If i am right on both counts… exactly what is the point of staying here, other than to make a symbolic effort for future generations or other countries, to not make the same mistakes?

is there some flaw in my argument? something i missed?

if not, I’m hearing good things about new zealand…

Comment #43429

Posted by Sir_Toejam on August 17, 2005 2:55 AM (e)

ack! it’s late. replace legislative branch with judicial, please.

Comment #43435

Posted by SEF on August 17, 2005 5:30 AM (e)

I think you are substantially right. The stupid, ignorant, gullible and reality-denying Christians are just asking to be used in that way as willing pawns to beat up and defeat their betters while pretending the motivation isn’t prejudice and greed. The intelligent, knowledgable, sceptical people have always been a small minority which has only been respected from time to time - the times when significant advances could be made as a consequence. Now isn’t really one of those times any more (and not just in America, though America may be one of the worst countries in the world for that).

I see a few of the current misguided supporters of the overthrow of rationality eventually saying: They came for “the intelligent, educated segment of the culture” first, claiming to have been attacked by them (Ray Mummert); and by the time they had destroyed the rest of civilised society and came for the gullible Christians too it was already too late.

Comment #43529

Posted by Sir_Toejam on August 17, 2005 2:19 PM (e)

right.. so, i guess the only debate revolves around the best location for the next ex-patriot migration? France was a popular destination some decades ago, I proposed New Zealand, any suggestions?

Comment #44006

Posted by 'Rev Dr' Lenny Flank on August 19, 2005 5:57 PM (e)

If i am right on both counts… exactly what is the point of staying here, other than to make a symbolic effort for future generations or other countries, to not make the same mistakes?

Well, I take hope in the simple fact that no matter HOW holy and godlike the fundies are when they seize total power, they are not bulletproof.

right.. so, i guess the only debate revolves around the best location for the next ex-patriot migration? France was a popular destination some decades ago, I proposed New Zealand, any suggestions?

What good’ll that do? The US will just invade sooner or later anyway. “If you’re not with us, you’re against us”, and all that.

Comment #44012

Posted by Jim Harrison on August 19, 2005 6:07 PM (e)

Premonitions of gloom about the radical right may be a hair premature. By all the polling I’ve seen the coutry is quite a bit to the left of the administration on most substantive issues, and Bush is hardly a popular president any more. While it is true that most people are ignorant about the sciences and like to express pious thoughts at times, they are also well aware that the goodies they enjoy are brought to them courtesy of science and technology. The groundswell of support for stem cell research shows how reluctant folks are to kill any potential golden geese. We should be reiterating to everyone how integral evolutionary thinking is to biology and therefore medicine.

Comment #44019

Posted by Sir_Toejam on August 19, 2005 6:30 PM (e)

“Well, I take hope in the simple fact that no matter HOW holy and godlike the fundies are when they seize total power, they are not bulletproof.”

Hmm, i wonder if homeland security will give me a reward for turning you in… ;p

“What good’ll that do? The US will just invade sooner or later anyway. “If you’re not with us, you’re against us”, and all that.”

it’s the LATER part i was thinking of… at least i don’t have to worry about New Zealand invading anyone in my name.

“Premonitions of gloom about the radical right may be a hair premature. “

not at all, actually. if you look at the actual figures readily available showing research funding availablities and emphasies of the neocon adminstrations since and including reagan, you will already see tremendous changes wrought by these administrations. plenty enough to be in “gloom” right now, let alone what the future holds if this continues.

the question of whether it would continue or not is the only one that is relevant, and the re-election of GW does not bode well to me that the majority of the country will vote in the direction that favors the interests of biological or evolutionary scientists.

I can’t agree enough with you that the constant reiteration of the importance of basic science and the intergral nature of evolutionary theory to it is important, but i have yet to see any impact of massive educational efforts on the poll numbers for the last 20 years (did you cathc the Nat Geo article of Nov 2004?).

I don’t believe being able to convince the public on a specific issue like stem cell research will change the basic reasons as to why we we ever needed to fight for presevation of stem cell research to begin with, nor change the public perception of science that the right has so carefully nutured and succussfully propagated over the last 20 years.

How many science skeptics have you been able to convert with discussion yourself? of the dozens i have made legitimate attempts with, i can’t really recall any real success stories.

fundamental changes in perception, occuring at even low grade school levels, would have to occur to change the trends i have seen.

Now theoretically, anything that can be done can be undone, but realistically, do you think this probable?

I’m certainly open to having my mind changed; hope is the energy that fuels us all, of course.

Comment #44023

Posted by Sir_Toejam on August 19, 2005 6:50 PM (e)

additionally, Jim, I don’t see the fundies attacking the areas of science that produce their wonderful creature comforts nearly as much as i see them attacking the areas that they view as threatening to their worldview.

by and large tho, i really think that public perception is only relevant to what they have been fed. if the large-scale market economies dictate that molecular biolgy is more profitable than evolutionary biology or ecology, then those with financial interests will work hard and succesfully to change peoples perceptions in favor of MCB over ecology. In part, i think this is exactly what has happened over the last 20 years. I don’t buy the idea that the neocons are really about religion over finance, to tell the truth. they clearly have manipulated religious groups as tools to make subtle changes to policy and funding directions over the years.

In support of this, I can recall a meeting i had with the head of NIH back in the days when i used to work for an NGO, who impressed upon me the need to build a grassroots powerbase in order to influence funding decisions within the legislature and administration.

yup, even NIH plays politics in order to affect funding levels within their own organization. While quite a while ago (15 years), it was quite an eye-opener to me at the time.

since then, i have seen the strategy “follow the money” to rarely be incorrect in uncovering the realities behind most political strategies, and doubt that will change in the future.

so those who predict the government will not abandon biomedical research when push comes to shove have proven to be correct, and we see even the current administration giving the slap-down to the fundies whenever the issues come head to head. However, that doesn’t change the current way that the powerbases have evolved, and i can’t see even basic level education being supported that would change that.

feel free to correct me if i missed something, in fact, i really want someone to prove me wrong, but so far i haven’t seen any significant evidence to the contrary to indicate much hope that there will be change in this strategy in my lifetime.

One might say politics is politics, and similar systems will evolve no matter where you go, but the difference is, some places just don’t have the infrastructure or population levels for it to make as much of a difference in every-day life, or make decisions for me as to how the military should be used (especially if they don’t even have one!).

Kind of like the difference between a local mayor of a small town and the president of the US, to give an extreme example.

corruption on a small scale is far easier to deal with.

forgive me if it seems i’m rambling, but i doubt seriously I’m the only one thinking along these lines.

Comment #44025

Posted by Jim Harrison on August 19, 2005 7:14 PM (e)

My hope that the public will shy away from continued attacks on science isn’t based on any faith that they will get enlightened any time soon. In fact I’m rather pessimistic about democracy in general. On the other hand, if you can’t win an argument with the good arguments, maybe you can win it with bad ones.

Over the years since WWII Congress has been willing to fund exceedingly expensive basic physics research because they they were encouraged to believe that figuring out the TOE might have enormous military implications. I think we should promote the notion that evolutionary thinking is also integral to what Americans really care about, i.e. wealth and power. After all, they certainly aren’t going to support the biological sciences simply because of a desire to understand how nature actually works.

I do agree that cultural reactionaries of all sorts want to have the technical benefits of the sciences while dodging the implications for traditional religion of scientific results. The best ewpose of this tendency I know is in Reactionary Modernism, a book by Jeffry Herf that one finds in an amazing number of bibliographies because it has had an enormous but mostly underground influence on undertanding what’s been going on for the last 100 years or so.

Comment #44026

Posted by SEF on August 19, 2005 7:19 PM (e)

Small scale corruption tends not to have political immunity for a start. Though it may well still have connections to corrupt lawyers, law enforcement, finance etc.

Comment #44027

Posted by Sir_Toejam on August 19, 2005 7:26 PM (e)

Ya know, i’ve seen Reactionary Modernism discussed many times, but have never actually read it.

sounds like next weekend’s reading project. :)

Comment #44037

Posted by 'Rev Dr' Lenny Flank on August 19, 2005 10:04 PM (e)

Hmm, i wonder if homeland security will give me a reward for turning you in… ;p

Wanna see my FBI file? :>

Comment #44038

Posted by Sir_Toejam on August 19, 2005 10:09 PM (e)

hell yeah! got that posted on your site?