Saturday, January 28, 2006


Trying To Keep Up With the Joneses


Michael Francisco has an article at the Discovery Institute’s blog, Evolution News & Views, entitled "Judge Jones said it, I believe it, that settles it - The Missing Legal Basis in Kitzmiller." Mr. Francisco, who has been identified as a second-year law student [1] at Cornell University, contends that Judge Jones’ decision, insofar as it denies that "Intelligent Design" is science, is mere dicta. Mr. Francisco then equates this supposed dicta with Judge Jones’ "personal opinion about how science curriculum should be . . . " Mr. Francisco’s main contention is that Judge Jones’ finding that Intelligent Design is not science "is absurd to anyone who respects the law. Judges should only be deciding matters of law, not declaring as authoritative his opinion on matters of politics, or philosophy, or science."
Mr. Francisco styles his article as a "detailed analysis," limited to the issues of why Judge Jones tried to answer certain questions (such as whether ID violates the ground rules of science, involves a "contrived dualism" or has been refuted by the scientific community) and what legal basis the Judge may have had for doing so. I will contend that Mr. Francisco has failed to remain within his stated limits and has wandered off into irrelevancies and even inanities. But the issues he identifies here are a good a place to start.

Mr. Francisco makes 2 main arguments in support of his contention above: 1) The issue of whether ID qualifies as science is irrelevant to an analysis of whether the Dover School Board violated the Establishment clause of the First Amendment; and 2) the case law cited by Judge Jones is sparse and, at the same time, unsupportive of either the need to address ID’s status as science or Judge Jones’ conclusions as to the constitutional effect of a finding that ID is not science.

Is ID’s Scientific Status Irrelevant to the Constitutional Issues Raised in the Dover Case?

Mr. Francisco correctly notes that there are, broadly speaking, two tests the courts use to determine if a violation of the Establishment clause has occurred: the "Lemon test" and the "endorsement test" and that the Judge discussed these tests in two separate sections of the decision. Mr. Francisco then notes that "[t]he bulk of Judge Jones’ analysis on why he thinks ID is not science appears in the endorsement test section of the opinion." (Emphasis added) Somehow, however, by the end of his article, this becomes: "Lest anyone forget, all the Kitzmiller analysis of ID not being science is supposed to fit within an endorsement test constitutional analysis" (Emphasis added) and Mr. Francisco then ignores the Lemon test section. As we will see hereafter, the omission is telling.

Mr. Francisco states his contention that ID’s status is irrelevant as follows:
The endorsement test section of Kitzmiller had four sub-sections: 1) would an objective observer know that ID evolved from creationism, 2) would an objective student view the disclaimer as endorsing religion, 3) would an objective Dover citizen view the policy as endorsing religion, and 4) "Whether ID is Science." One of these four sections is not like the others. ...
There is no attempt by Judge Jones to connect the science question with the religious endorsement legal analysis. Why is it "incumbent" on this court to "further address an additional issue raised by Plaintiffs"? It is not the role of the court to answer all issues raised by a party in litigation, and it is most certainly not answering a constitutional question. I cannot recall ever reading a case where the Judge candidly pronounces that it’s time to answer "an additional issue raised by the plaintiff’s," at least not without some connection to the legal decision.
It is true enough (though hardly as simple-minded as Mr. Francisco would make it) that if the court addresses "extra" arguments by the winning side that are not relevant to the basis for the court’s decision, or if the court comments on issues that are not "before the court" because they are not in dispute between the parties, any such comments by the court are considered non-binding dicta. But, if the losing side has made arguments which it contends would negate one of the contentions of the winning side or even require a different result, then it most definitely is incumbent on the court to address those arguments. Unless Mr. Francisco is merely engaging in literary criticism of Judge Jones’ decision (to the effect that the Judge did not make his reasoning clear for addressing the issue) we must go beyond the one sentence fragment he quotes on this point out of a 139 page decision and see if ID’s status was, in fact, at issue in the case.
The defendant school board certainly thought the status of ID was an issue for Judge Jones’ consideration. The following is from the closing argument on behalf of the defendants by Patrick Gillen of the Thomas More Law Center:
[T]he evidence of record demonstrates that the curriculum change at issue here had, as its primary purpose and has as its primary effect, science education. It is true that it attracts attention to a new and fledgeling (sic) science movement. But look at Steve Fuller. See it through his eyes. See it through the eyes of history and watch how he can see what may be the next great paradigm shift in science, a wholly new vista that does service to the children of this district by allowing them to put together scientific fields in a new and exciting way which is ultimately productive of scientific progress.
And there was also this from Mr. Gillen:

The plaintiffs have failed to prove that the primary effect of Dover's curriculum change is to advance religion for another reason. The evidence shows that intelligent design is science, a theory advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion.

The evidence has failed to support the claim that intelligent design is a nonscientific argument that is inherently religious. The testimony and evidence offered by Behe and Dr. Scott Minnich proved that IDT is science.

Nor were the defendants alone in making assertions about ID’s status as science. The Discovery Institute itself submitted an amicus curiae (friend of the court) brief to Judge Jones that included the following:
Secular purposes for teaching about the theory of intelligent design include informing students about competing scientific theories of biological origins . . .

As to the second prong of the Lemon test, plaintiffs falsely assert that the theory of intelligent design necessarily has the primary effect of advancing religion. Instead, there is every good reason to regard the theory of intelligent design as a scientific theory, and thus, the primary effect of informing students about it is to improve science education and thus, the primary effect of informing students about it is to improve science education; further, the inclusion of such "alternative scientific theories" was clearly authorized by Edwards v. Aguillard. (Emphasis added) (pp. 6-7)
So the Discovery Institute argued that, if ID is science, that would satisfy the second prong of the Lemon test and negate one of the plaintiff’s arguments as to why the Dover policy was unconstitutional. That certainly makes the status of ID relevant to the Judge’s decision under the Lemon test. That is why it is interesting (to say the least) that Mr. Francisco ignored Judge Jones where he said:
While the Third Circuit formally treats the endorsement test and the Lemon test as distinct inquiries to be treated in succession, it has continued to recognize the relationship between the two. Moreover, because the Lemon effect test largely covers the same ground as the endorsement test, we will incorporate our extensive factual findings and legal conclusions made under the endorsement analysis by reference here, in accordance with Third Circuit practice. (Citation omitted) (p.133)
In other words, while the analysis of ID’s status was, as Mr. Francisco noted, physically located in the endorsement test section, it was also crucial, as the Discovery Institute’s own brief claimed, to the application of the Lemon test. Under these circumstances, the assertion by a spokesperson for the Discovery Institute that Judge Jones’ finding of fact was irrelevant to the issues in the case is, at best, disingenuous.
It should also be noted that the above answers the Discovery Institute's assertion, accurately predicted by Judge Jones, that the decision was the result of an "activist judge," who reached "well beyond the immediate legal questions before him" by addressing more than the bare minimum needed to find that the Dover policy was unconstitutional. Not only is it the proper procedure in the Third Circuit to apply both the Lemon and endorsement tests, it is routine for a trial court to supply all the possible rationales for its ruling, in case one justification is found to be inapplicable but another would, nonetheless, dictate the same result.
Finally, and for irony’s sake, it has to be pointed out that Mr. Francisco contradicts himself about the relevance of ID’s status. As he states, in his discussion of the case of Edwards v. Aguillard (that I will return to), the Supreme Court noted in that case: "We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught." (Edwards at 594) But Mr. Francisco goes on to say: "Much of the ID Policy that Kitzmiller ruled on can fairly be considered scientific critiques of the prevailing theory." (Emphasis added) If Mr. Francisco and the Discovery Institute are going to take cover under Edwards, they have to live up to the requirement the Court set, that they provide scientific critiques. ID advocates had the opportunity to prove to an impartial judge that it was fairly said that ID is scientific. They failed miserably and, having done so, the Discovery Institute now wants to call a "do over" by pretending that Judge Jones’ findings of fact are mere "personal opinion" instead of the considered judgment of an obviously competent jurist who had the benefit of some 21 days worth of testimony and extensive briefs to draw on, including the Discovery Institute’s own.
Was the Case Law Cited By Judge Jones Sufficient to Support His Ruling In This Case?
First let me dispose of one of Mr. Francisco’s inanities. He notes that in Judge Jones fourth sub-section, "Whether ID is Science," in his discussion of the endorsement test, "Judge Jones only refers to case law three times. For a section that runs 25 pages (64–89), that is strikingly sparse."
Considering that this section is only 18% of the decision and is specifically dealing with findings of fact based on the recitation of the extensive trial testimony and exhibits, it is hardly unusual that case law is not heavily referred to in it. Nor am I aware of any minimum number of precedents necessary to support a decision. A single apropos Supreme Court precedent is sufficient for almost any purpose. Like any good magician practicing sleight of hand, Mr. Francisco would have you counting the number of citations in this section rather than paying attention to the devastating litany of facts demonstrating the utter lack of scientific merit to ID and its status, instead, as barely disguised theology.

Returning to Mr. Francisco’s treatment of Judge Jones’ use of Edwards v. Aguillard, I’ll pass by Mr. Francisco’s naked assertion that there is a "difference in challenging methodological naturalism and supernatural causation" and that "ID does not advocate supernatural causation." And I’ll just mention another of Mr. Francisco’s inanities in his argument that Judge Jones must be wrong about Edwards declaring supernatural causation an "inherently religious" concept because the word "inherent" appears nowhere in Edwards. [2] The Court there called creationism a concept that "embodies the religious belief [in] a supernatural creator," (Emphasis added) (p. 592). Perhaps a mind so constipated as to be unable to grasp evolutionary theory cannot see the similarity between "inherent" and "embodied."
What cannot be overlooked is the following:
The Edwards Court stated that "[t]here is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution." (Edwards at 591). The Court was concerned only with the Louisiana balanced treatment law, not any general question of supernatural causation. "The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind." (Edwards at 592) The case went on to examine "the legislature that adopted this Act" and the "legislative history." This was clearly fact-specific to Louisiana and completely inapplicable to intelligent design two decades later in a different state.
This is so confused as to make it difficult to even determine what Mr. Francisco’s point is. Most appellate court cases, and all Federal Court cases which are not moot, are "fact-specific." Federal courts are restricted to hearing "cases in controversy." Unlike state appellate courts (who rarely exercise the power in any event), Federal courts cannot issue "advisory opinions" answering general legal questions not tied to specific fact patterns. The value of a court decision as precedent is not limited merely to cases with identical fact patterns. Courts consciously seek to state rules of law that can be applied to broad areas of the law and modified, if need be, to analogous situations even farther afield. Two hundred plus years of American jurisprudence has had no difficulty in applying rules of law derived from one set of facts to cases with different facts.

This can be seen in Edwards itself, where the Court cites to cases with diverse fact patterns, including: a State requiring that the Ten Commandments be posted in public classrooms, a statute requiring the selection and reading of verses from the Bible, as well as the recitation of the Lord's Prayer by the students in unison, and a law providing for a 1-minute period for meditation. None of those cases dealt with creation science or the specific law in Louisiana but they were still considered controlling as to relevant points in the case, just as Edwards was relevant to the situation in Dover.

Of course, if there is a difference in the facts that should dictate a different result than in the case cited, that is another matter. But Mr. Francisco makes no attempt to show such a distinction but merely asserts that Edwards is "completely inapplicable to intelligent design two decades later in a different state." [3]

Now, Mr. Francisco may not want to try to distinguish the creation science at issue in Edwards and ID because that would just point up that the only relevant way to establish that difference is by showing that ID is science, again demonstrating the relevance of Judge Jones determination of that issue. His reluctance might also have something to do with the embarrassing ease with which the creation science textbook, Of Pandas and People, was converted into an Intelligent Design textbook.

Finally on this point, it should be noted that Mr. Francisco cites with approval the following statement from Edwards: "We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught." Applying his own standards, that is not only dicta, since it did not address any issues before the court at that time, it is, therefore, only the "personal opinion" of Justice Brennan that is completely inapplicable to intelligent design two decades later in different parts of the country. Such are the wages of wielding legal nihilism.

Without conceding Mr. Francisco’s characterizations of the logic behind the decision in McLean v. Arkansas, there is little use in going into that case, since Mr. Francisco dismisses McLean, saying: "McLean came several years before the Supreme Court started employing the endorsement test – so Judge Jones should have explained how that case remains relevant." It seems almost cruel to point out to Mr. Francisco that Edwards (where McLean was cited favorably by Justice Brennan, writing for the Court, and Justices Powell and O’Connor in their concurrence) was also decided before County of Allegheny v. ACLU, 492 U.S. 573 (1989) first implemented the endorsement test. Mr. Francisco seems to have no problem with the relevance of Edwards. Indeed, as noted before, the endorsement test was not intended to replace prior standards, such as the Lemon test, but to be read with them. In such a circumstance, it would be more appropriate to ask why McLean would not be relevant.
In any event, Mr. Francisco contrarily denies that Judge Jones based his determination on McLean’s logic while demanding a demonstration that it is still relevant:

The McLean court reasons that teaching creation science can have only two effects, either advancing religion or adding educational value to science. Since McLean found the Arkansas creation science to lack any scientific benefit, it reasoned that its only remaining or effect was to advance religion. However, looking at Judge Jones' reasoning in Kitzmiller, there is none of the without-science-only-religion analysis. Even the closest reading of Judge Jones pivotal conclusion to the science sub-section, page 89, shows no claim that a lack of scientific status creates a constitutional problem. Kitzmiller reads as a free-standing essay on the nature of science.

Instead of addressing the McLean case, Mr. Francisco simply declares that "there are too many differences between the McLean case and the Kitzmiller case to analyze here" and asks why it is important whether or not ID is science: "There is no legal requirement that schools must teach only true science."

This is a position that perhaps should be kept in mind the next time you hear a representative of the Discovery Institute claim that they are only interested in the good education of American children but it is essentially correct, as long as what is being taught can otherwise meet the requirements of the endorsement and Lemon tests. But that is most definitely not the same as saying that ID’s status vis a vis science is irrelevant to whether it meets those constitutional tests.
As noted before, even if the status of ID does not bear on the endorsement test, it clearly bears on the Lemon test, as the Discovery Institute argued itself. And, if nothing else, if ID could establish that it is science it would not matter if it incidentally appeared to be an endorsement of religion. Similar to the situation in the "primary effect" analysis under the Lemon case, as set out in the Discovery Institute’s own amicus curiae brief, evolutionary theory can be taught because "its primary effect is to advance science education and any effect on religion is merely incidental." If ID could only convince objective observers such as Federal judges that it was science, it could be taught too.

Mr. Francisco’s treatment of Judge Jones’ reference to Selman v. Cobb County is so perfunctory as to not warrant comment.

Other bits of irrelevancy that should be given some attention include Mr. Francisco’s equating "dicta" with "personal opinion." That is not the case at all. Even if Judge Jones’ decision about the nonscientific nature of ID were to be held to be dicta, that would not change the fact that it was based on extensive evidence considered under all the same conditions that would lead to results that would be considered "fact" in our judicial system. Again, it is nothing but legal nihilism to imply that the objectivity of the system’s fact finding mechanism is dependent only on whether a factual question is technically "at issue" or whether the result turns out to be dicta. Similarly, Mr. Francisco is wrong to assert that our courts have no business deciding what is science and what is not. As Ed Brayton has already pointed out at his site, Dispatches from the Culture Wars, the courts regularly and necessarily address such questions.

Before closing, I wish to address a pet peeve of my own. Mr. Francisco seizes on the Judge’s phrase, "[T]he 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" opining that the word "traipse" is "a signal that the judge intends to answer questions outside the law" and tries to mock the Judge with it, repeating it three more times. Normally, I would not bother to raise this, allowing the substitution of childish behavior of the "Beavis and Butt-Head" sort (Heh, heh . . . he said "traipse") for cogent argument to speak for itself. But I am so sick of the colorless technocratic writing that has become the norm in the legal profession. Reading older decisions (and those of the best judges too secure in themselves to care about Philistines) you see a love of language and a desire to use it not just to explain but to convince, so that the consent of all citizens to the law might be secured. That Mr. Francisco might contribute by his mockery, even in a small way, to the eradication of all color from the language of the law is enough reason to dislike his article.

To sum up, the article by Mr. Francisco, far from being a detailed analysis, is a slapdash attempt to distract those unfamiliar with our legal system from the consequences of the Kitzmiller decision through a denial of the process of the law just as fundamental as ID’s denial of the process of science.


[1] I just celebrated (such as it was) my 31st anniversary as a practicing attorney and, while my specialty has never been constitutional law, I have had extensive experience in both trial and appellate practice.
[2] The phrase, as is fairly obvious from Judge Jones’ opinion at p. 67-68, actually comes from McLean v. Arkansas Board of Education.
[3] One has to wonder if Mr. Francisco is aware that state borders do not interfere with the applicability of Supreme Court decisions.

It seems almost cruel to point out to Mr. Francisco that Edwards (where McLean was cited favorably by Justice Brennan, writing for the Court, and Justices Powell and O’Connor in their concurrence) was also decided before County of Allegheny v. ACLU, 492 U.S. 573 (1989) first implemented the endorsement test.

I'm no lawyer, but I thought the endorsement test was first implemented in Lynch v. Donnelly, in 1984?
Wow! I was writing a critique of Mr. Francisco's post but, now that I've read this, there is nothing more to add. Great job.
"There is no legal requirement that schools must teach only true science."

What ???

The Discovery Institude now acknowlege that ID is neither Religion nor Science ??

They will fight for their right to teach Bad Science to our kids ???

Color me nonplussed.
anonymous wrote:

I'm no lawyer, but I thought the endorsement test was first implemented in Lynch v. Donnelly, in 1984?

That's when Justice O'Connor first proposed a separate "endorsement test." Allegheny is where a majority of the Court first adopted the test.

Thanks for sharing this. I'm also including a link to a recent critical interaction with Behe's latest book that I posted on my own blog:
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