Posted by PvM on December 23, 2005 05:43 PM
On the Discovery Institute’s blog, West revisits the statement by Judge Jones and reaches some poorly argued conclusions:
Take the following remarkable passage from his opinion:
the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. [p. 63] (emphasis added)
West based on this ‘argues’ that
This passage exhibits the height of presumption, and it’s why in my initial statement after the trial I referred to Judge Jones as having “delusions of grandeur.” First, and contrary to the Judge’s claim, a determination of whether ID is science was plainly NOT essential to the disposition of the case, as pointed out above.
First error, the judge is clear that the reason for the conclusion on whether ID is science as because it is essential to our holding that an Establishment Clause violention has occurred. So why would the judge raise these issues.
Simply, he is following legal precendence
Our next task is to determine how to apply both the endorsement test and the Lemon test to the ID Policy. We are in agreement with Plaintiffs that the better practice is to treat the endorsement inquiry as a distinct test to be applied separately from, and prior to, the Lemon test. In recent Third Circuit cases, specifically, Freethought Society v. Chester County, 334 F.3d 247, 261 (3d Cir. 2003), Modrovich, 385 F.3d at 401-04, 406-13, and Child Evangelism, 386 F.3d at 530-35, the court adopted the practice of applying both tests. The Third Circuit conducted the endorsement inquiry first and subsequently measured the challenged conduct against Lemon’s “purpose” and “effect” standards.4
Footnote 4 reads:
We do note that because of the evolving caselaw regarding which tests to apply, the “belt and suspenders” approach of utilizing both tests makes good sense. That said, it regrettably
tasks us to make this narrative far longer than we would have preferred.
[PvM: And as Sandefur pointed out to me, the judge is talking about being in the best place to assess the facts, not the law. Since Jones’ court has heard the evidence, he is in the best position to argue the facts]
In other words, the judge showed a thorough analysis based on the pre-existing and evolving case law. The judge is merely showing an abundance of caution:
Although ID’s failure to meet the ground rules of science is sufficient for the Court to conclude that it is not science, out of an abundance of caution and in the exercise of completeness, we will analyze additional arguments advanced regarding the concepts of ID and science.
Establising that ID is not science is essential when applying the Lemon test
Although we have found that Defendants’ conduct conveys a strong message of endorsement of the Board members’ particular religious view, pursuant to the endorsement test, the better practice in this Circuit is for this Court to also evaluate the challenged conduct separately under the Lemon test.18 See Child Evangelism, 386 F.3d at 530-35; Modrovich, 385 F.3d at 406; Freethought, 334 F.3d at 261.
Thus, Judge Jones, is merely applying the better practice in his Circuit to also look at the Lemon test. Given the evolving nature of case law in the area of the Establishment clause and the Lemon test, it seems rather prudent of the judge to address them both.
In addition, while the defendants may not have raised the argument that there is a secular purpose in teaching ID, the Discovery Institute’s Amicus brief argued that the primary effect of teaching ID is not necessarily religious. They argued that ID is both scientific and serves to ‘teach the controversy’.
Judge Jones, in order to rule on the Lemon test, needed to address the arguments submitted to him by the Discovery Institute and show that ID is neither science nor serves a valid role in ‘teaching the controversy’.
In other words, the Judge may very well have been forced to address these issues since they were so prominently raised in the Amicus Brief. If that is the case, then it would be particularly ironic that the filing of the Amicus brief by the Discovery Institute had the opposite effect.
Even more troubling, however, is the Judge’s suggestion that he wanted to determine whether ID is science so that no other judge need investigate the facts for himself. Judge Jones is a federal district court judge in one particular district court in Pennsylvania. But he’s speaking as if he is more powerful than a majority on the United States Supreme Court!
Nothing in the Judge’s ruling even suggest that this is the case. West is trying to create a strawman. Judge Jones argues that first of all he is in very good position to rule on this matter given the nature of the court case. Secondly, ruling on whether ID is science was essential to establishing a violation of the establishment clause.
To briefly reiterate, we first note that since ID is not science, the conclusion is inescapable that the only real effect of the ID Policy is the advancement of religion. See McLean, 529 F. Supp. at 1272.
Judge Jones’ ruling surely brings out the best in ID proponents
Of course, the newsmedia are now fast spinning the tale that Judge Jones is not only a Republican, but he’s supposed to be a conservative and devoutly religious Republican. As I will blog about soon, those claims seem to be about as mythical as the view that Judge Jones isn’t an activist.