Saturday, January 13, 2007


The Big Guns?

The Discovery Institute is crowing about the fact that there is has been a "note" published in the Rutgers Journal of Law & Religion that agrees with their position that Judge Jones did not need to reach the question of whether Intelligent Design is a scientific or a religious concept.

The note was authored by Philip A. Italiano, who expects to obtain his Juris Doctor degree from Rutgers University School of Law this coming May. It is diagnostic of the current health of the ID project that they become excited at having one of their arguments endorsed by a law student.

Strangely, however, the DI fails to note one of Mr. Italiano conclusions:

Certainly, Judge Jones’ findings of fact make a strong case for his assertion that intelligent design is a religious concept. (p. 37)*

Still, Rutgers is a very good school and Mr. Italiano is an Associate Managing Editor of the Rutgers Journal of Law and Religion, which would tend to indicate some substantial academic ability. Therefore, his status as a law student does not directly go to whether or not he is right about Judge Jones' decision in Kitzmiller. However, I will argue below that he has made either a "rookie mistake" about the nature of courts and their decisions or is making a sub rosa argument which is invalid.

Mr. Italiano's thesis is well stated at p. 34:

[T]he court [in Kitzmiller] had made its case for invalidating the Dover policy under the endorsement test. The court completely fulfilled the endorsement test requirements set forth in [two prior rulings] first by examining the cultural and legal backdrop of similar challenges to the teaching of evolution in public schools and then by examining policy’s text, legislative history within the board meetings, and presentation to the student body and the community at large before reaching its conclusion. The policy could have been invalidated under the endorsement test on these grounds without the court’s subsequent discussion of whether intelligent design itself is science. [Footnote citations omitted]

In essence, Mr. Italiano is arguing that once a court finds one good reason to rule in a case, it should then stop. This is a misunderstanding of what courts mean when they extol a "narrow" decision. This is similar to the claim made by Michael Francisco, also a law student, on behalf of the Discovery Institute, to the effect that Judge Jones' decision about the status of ID was mere "dicta." I already addressed that claim and much the same arguments apply.

First of all, a narrow decision is not one that only puts forth one and only one rationale for a ruling. It is a decision that limits its ruling to a (suitably) similar set of facts. There is obviously much leeway in what constitutes "similar" and cases are usually given "narrow readings" in retrospect when the court citing the previous decision does not like the potential uses it could be put to if its scope is expanded. As a quick example, some action by a police officer might be deemed to violate a suspects Miranda rights in two or three different ways but a later court might then decide that those same sort of actions by different government employees, say medical personnel questioning a wounded suspect in aid of his or her treatment, would not fall under the earlier decision. Thus, the ruling in the case of the police officers may give multiple reasons why their actions violated Miranda but the ruling is still said to be too "narrow" to apply to similar questioning by doctors.

In Kitzmiller, Judge Jones gave multiple reasons why the policy violated the Establishment Clause of the First Amendment but he did not try to apply his decision to whether ID could be taught in comparative religion classes or hold that ID could not be taught in state universities. His ruling was therefore narrow in the sense that it was limited to the facts presented to him and based on the extensive evidence the parties presented.

Perhaps more importantly, trial courts almost always give multiple grounds for their decisions if they can. Mr. Italiano admits that Judge William R. Overton's decision in McLean v. Arkansas Board of Education, also addressed the question of whether "creation science" (before it was made over into ID by Of Pandas and People) was, in fact, science. Mr. Italiano says (p. 26) that "the Kitzmiller court’s analysis is most comparable to that of McLean." He makes a stab at suggesting that is not a favorable circumstance:

A problem with the comparison between McLean and Kitzmiller lies with the fact that the U.S. Supreme Court neglected to evaluate both Lemon test prongs in [Edwards v. Aguillard] a case decided five years after McLean, and the Court has continued to limit its Lemon test application in recent Establishment Clause cases after it has discovered a primary religious purpose. [Footnote citation omitted]

The problem with his apparent implication that the decision in Edwards somehow stands for the impropriety of a trial court giving multiple rationales for its decision is that McLean was cited favorably by Justice Brennan, writing for the Court in Edwards, and Justices Powell and O’Connor in their concurrence. If there was a reason to criticize the lower court for the mere citation of reasons for a decision other than those ultimately adopted by the Supreme Court, there would have been ample opportunity for that in Edwards.

The only other case Mr. Italiano compares Kitzmiller to that is not an appellate case is Selman v. Cobb County School District that, ironically, was sent back to the trial court for further proceedings by a panel of the Eleventh Circuit Court of Appeals. While the problem Judge Cooper encountered in Selman might not have been solved by adding additional grounds for his decision at the trial level, it is exactly that kind of remand for further consideration that trial judges try to avoid.

It is simply not the practice of Federal District Courts to mechanically follow some supposed script, listing, in order, possible grounds for a finding of a violation of the Establishment Clause, and to stop once they have one they think will "stick" with the higher courts on appeal. Even intermediate appellate courts don't do that, as shown by a case Mr. Italiano relegates to a footnote (136 on p. 30). In Modrovich v. Allegheny County, a decision by the Third Circuit (which has jurisdiction over Judge Jones' District), the Court of Appeals noted that, in an earlier case, it had "decided [the issue] under the endorsement test, [but] it also applied the Lemon test, as the Supreme Court could still potentially review the issue under Lemon." The notion of a belt and suspenders is not foreign even to appellate judges.

Mr. Italiano then (not so subtly) shifts his criticism. He started out claiming only that he would show that "though its outcome was correct, the Middle District of Pennsylvania issued too broad a ruling" (p. 4), a position he "achieves" by spreading rather significant misunderstanding of trial and lower appellate court practice. But then he argues that there might be different results in other Circuits (pp. 34-36). Although he apparently concedes that:

... while Third Circuit precedent permitted the Kitzmiller court to evaluate the facts under the endorsement test and the Lemon test, in that order, other circuit courts might still approach a similar fact pattern under the Lemon test and strike down the policy at issue strictly because of the School Board’s religious purpose. [Footnote citation omitted]

Judge Jones sits in the Third Circuit. If, as Mr. Italiano claims, there is or may be a conflict with other Circuit Courts of Appeals as to how they want Establishment Clause cases handled, then Judge Jones is duty bound to follow his Circuit's rulings. Conflicts between the Circuits are to be decided by the Supreme Court, not by District Judges in Pennsylvania. If Judge Jones had tried to usurp the Supreme Court's function, then he would have truly been an "activist judge."

Exploring the Establishment Clause jurisprudence of all the Circuits is more than I have the time or interest in doing in response to a law student's note. I am, however, relatively confident that there will be no case law found chiding trial judges for giving too many grounds for their decisions.

If the Discovery Institute thinks they can make a better case for teaching ID as science, I'm sure they can chivvy some school board in some other Circuit into trying to teach it. Certainly, Mr. Italiano's real thrust seems to be that "the fat lady ain't sung yet" on ID in the courts. By all means, they are free to try again, this time with their own lawyers if they want.

I'll watch with great interest the enthusiasm the DI puts into searching out another test case.
* Citations to Mr. Italiano's article are to the page numbers in the pdf file.
Update: Ed Brayton has also posted a reply to this article and the additional time he took shows, in that he made a number of points that I did not address. It's well worth the read.

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