Timothy Sandefur posted Entry 1816 on December 22, 2005 01:37 PM.
Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.fcgi/1811

The Discovery [sic] Institute has brought forth Prof. David DeWolf of Gonzaga University to evaluate the Kitzmiller case. Interestingly, DeWolf doesn’t complain about Judge Jones’ finding that the Dover ID policy violated the Establishment Clause. But he is bothered that Jones “went on to address the question of whether intelligent design is science.” But this is not improper for a court to do.

As I’ve explained, courts are called upon all the time to determine whether things fall into one category or another. Courts have been asked to decide whether, for instance, a radio is a “musical instrument,” Dunbar v. Spratt-Snyder Co., 226 N.W. 22 (Iowa 1929), or what the definition of “mathematics” is, John A. Steer Co. v. United States, 53 C.C.P.A. 67, 70 (Cust. & Pat. App. 1966), or what the definition of “fortune telling” is, Davis v. State, 160 N.E. 473, 475 (Ohio 1928), or whether softball is an “athletic contest,” Curtis v. Board of Educ. of Sayre Public Schools, 914 P.2d 656, 659 (Okl. 1995), or even what the definition of “art” is. In re Leonardo, 102 B.R. 202, 203-04 (E.D. Ca. 1989). Courts are rather often called upon to decide whether something is a “religion” or not, see, e.g., Kaufman v. McCaughtry, 419 F.3d 678, 681-82 (7th Cir. 2005); Borzych v. Frank, 2005 WL 2206785, at *11-12 (W.D. Wis. Sept. 9, 2005); Stately v. Indian Community School of Milwaukee, Inc., 351 F.Supp.2d 858, 867-69 (E.D. Wis. 2004). And, of course, courts have adopted workable definitions of “science,” as well. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593 (1993). There’s no reason in the world why determining whether softball is an athletic sport is within the proper realm of the court, but determining whether ID is science is not.

In Theriault v. Silber, 453 F.Supp. 254 (D.C. Tex. 1978), the court was called upon to decide whether the “Church of The New Song”—a prison-devised religion which taught that inmates must be served steak and wine—was a religion or not. The court found that it was “not...a religion, but rather...a masquerade designed to obtain First Amendment protection for acts which otherwise would be unlawful.... [T]he unmistakable stench of the skunk is found eminating from that which petitioner has declared a rose.” Id. at 260. Why can a court do this, but not determine whether ID is, or is not, religion, or is, or is not, science?

DeWolf complains about Judge Jones’ finding that one can be a Christian and still believe in evolution. Sure, the court heard testimony from theologians on the matter, but that should not have persuaded the court, writes DeWolf; the idea that one can be both a Christian and a believer in evolution is “like a judge assuring us that it is ‘utterly false’ that Judaism is inconsistent with eating pork.”

Now, that’s an interesting analogy. Suppose that that question were to come before the court. How would the court determine whether or not eating pork is consistent with kosher rules? Well, it would take testimony from rabbis, or from historians who are experts on Judaism. It would consult learned treatises, even religious scriptures. It would take notice of matters of common knowledge in the community. And it would learn in the process what kosher requirements are. In Schlesinger v. Carlson, 489 F.Supp. 612 (D.C. Pa. 1980), an Orthodox Jewish prison inmate complained that he was not being allowed to observe Passover as his faith required. The court took the kind of evidence I’ve described, including testimony of three rabbis, and it concluded that

Jewish dietary laws applicable during Passover require that only foods certified kosher for Passover by appropriate Rabbinical authorities be eaten. This requirement is based on the Biblical injunction that during Passover no chometz be eaten. A grossly simplified explanation of chometz is any food containing leavening agents, certain entire groups of food, and in general any food which is not prepared in a manner which assures that no forbidden matter is introduced into the food. In addition, the utensils used to prepare, cook, serve and eat the food must not have been used at any other time of the year. To do so renders them not kosher for Passover. Further, the kitchen itself and equipment such as ranges, sinks and preparation tables must be made kosher for Passover. These dietary laws apply in addition to the usual kosher laws which again, to oversimplify grossly, prohibit the mixing of dairy and meat products as well as the consumption of certain types of food, most familiarly pork products.

Id. at 614. That is to say, it is entirely proper for a court to determine whether eating pork is or is not consistent with Judaism.

Likewise, there is nothing wrong with the court determining on the basis of the evidence before it, that religion and evolution are not necessarily mutually exclusive. Now, Prof. DeWolf himself might disagree with its decision—he might believe that it is so glaringly obvious that you cannot be a Christian and a believer in evolution at the same time, that it is abusive for the court to reach the conclusion it reached. That’s certainly his prerogative as a religious man. But he is wrong to suggest that somehow these kinds of determinations are beyond the court’s proper function.

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Comment #64155

Posted by Nick (Matzke) on December 22, 2005 2:05 PM (e)

That is to say, it is entirely proper for a court to determine whether eating pork is or is not consistent with Judaism.


Tim Sandefur of Panda’s Thumb: 1
Prof. David DeWolf of the Discovery Institute: 0

Comment #64159

Posted by Donald on December 22, 2005 2:14 PM (e)

Are you prepared to repeat your conclusion when a creationist judge declares evolution non-scientific and disproven?

Comment #64162

Posted by Timothy Sandefur on December 22, 2005 2:21 PM (e)

Absolutely. The abuse in such a situation would not be that the court had overstepped its proper role as a finder of fact and applier of law, but that the court had applied facts so wrongly as to exceed the boundaries of reasonableness and therefore abuse its discretion; that is, that no reasonable trier of fact could have come to the court’s conclusion. That is different than saying that the court has no authority to make such conclusions in the first place. Now, if DeWolf is contending that Judge Jones’ ruling is so absurd that no reasonable trier of fact could have reached that conclusion–well, like I said, that’s his prerogative. But he cannot contend that such rulings are outside the court’s authority. They’re not.

Comment #64165

Posted by noturus on December 22, 2005 2:30 PM (e)

Donald said:
“Are you prepared to repeat your conclusion when a creationist judge declares evolution non-scientific and disproven?”

It ain’t gonna happen. To paraphrase Lenny Flank, every time creationists go into court (i.e. a fair fight) they lose. Thats the nice thing about having the facts on your side, which we do (just read the trial transcript)! Nice to see that you aren’t using the whole “ID isn’t creationism” canard though, it’s quite refreshing. Good for you Donald!

Comment #64172

Posted by Timothy Sandefur on December 22, 2005 2:42 PM (e)

Well, we don’t know that Donald is a creationist. He could very well not be. His concern is an understandable one. If we start submitting scientific disputes to courts, then we run the risk that courts will fall victim to the public choice effect, and start manipulating that power. That’s why courts are absolutely forbidden from addressing the truth or falsehood of religious statements. But I think in this case, that concern doesn’t warrant holding that courts need to stay out of it entirely.

Comment #64174

Posted by Tyrannosaurus on December 22, 2005 2:43 PM (e)

The same conclusion will be repeated if a creationist judge declares evolution non-scientific provided that; (1) the judge hears evidence from experts in the field, (2) from learned treatises and publications, (3) from common knowledge in the scientific community, and (4) from knowledge available to an informed person (adult or student). In general if the evidence is towards evilution (correction : evolution) as a non-scientific and disproven theory then as you can see the same conclusion could be repeated.
Waaahhh Ha ha hahahahahahahahahahahha!!!!!!!!!!!!!
Just sit and wait for that one. You are going to grow old and senile before anything as such happens.

BTW Merry Christmas

Comment #64195

Posted by MrDarwin on December 22, 2005 3:45 PM (e)

I have read so many articles on this case that there is no hope of tracking it down, but I am fairly certain that I read somewhere that the pro-ID side had specificially asked the judge to rule on the issue of whether ID is science. Has anybody else run across this?

Comment #64197

Posted by Ed Darrell on December 22, 2005 4:02 PM (e)

DeWolf is the guy who had the law review article saying it was perfectly legal, and schools should teach ID – considerably beyond the actions the Dover board took. Considering that so far DeWolf has been 100% wrong on every single point, why would the DI admit they even know the guy?

I think Judge Jones’ decision is a point-by-point refutation of DeWolf’s claims.

If a lawyer gave a client such information, I think the lawyer would be liable for stupid advice.

Comment #64239

Posted by 'Rev Dr' Lenny Flank on December 22, 2005 6:43 PM (e)

Blah blah blah.

DeWolf’s pals had their day in court. They were free to offer whatever evidence they wanted to, present whatever witnesses they wished, and cross-examine the other side to point out any errors or falsehoods that they thought they saw.

ID shot is load. It lost. Crushingly and embarrassingly.

So quit your damn whining and get used to it. (shrug)

Comment #64243

Posted by 'Rev Dr' Lenny Flank on December 22, 2005 6:54 PM (e)

If we start submitting scientific disputes to courts

Nobody has submitted any scientific dispute to any court.

What was submitted (and crushingly rejected) was a naked political attempt by a bunch of religious nuts to get around various legal restrictions so they could force their religious opinions onto others by lying and claiming their religious opinions were really “science”.

It has nothing to do with any “scientific dispute”.

Comment #64254

Posted by Steviepinhead on December 22, 2005 7:34 PM (e)

Following along carefully now: there hasn’t been any real “dispute” among real scientists about the overall validity of the Theory of Evolution for well over a hundred years.

Those are the simple facts.

Ergo, it’s pretty darn difficult to submit for court resolution a “dispute” that no scientists were having in the first place.

As to what the court was actually dragged into resolving–and handled impeccably–[insert here what Lenny said from post immediately above].

Comment #64294

Posted by the pro from dover on December 22, 2005 10:22 PM (e)

If intelligent design is science as its proponents claim and if science is defined by a commitment to philosophical materialism as those same proponents claim then….?????? Inquiring minds want to know!