Wednesday, January 17, 2007



Casey Luskin, in no great surprise, is off again on a tilt after a certain windmill that resembles a certain Federal Judge.

The occasion for this foray into fantasy is an email he claims to have received that was directed to the Editor-In-Chief and Managing Editor of the Rutgers Journal of Law and Religion about the "note" in that publication, by a third-year law student, that the Discovery Institute was publicizing as some sort of vindication for their claim that Judge Jones went "too far" in ruling that ID is a religious, not a scientific, concept. The author of the email apparently closes with a quote from Richard Dawkins to the effect that religion is a "brain virus."

The email author does not, as far as we know, attribute that in anyway to Judge Jones but Luskin nonetheless states, not altogether incorrectly:

Clearly SGB misunderstands the Kitzmiller ruling. Judge Jones emphatically declared it is "utterly false" to believe that "evolutionary theory is antithetical to a belief in the existence of a supreme being." Judge Jones even ruled that evolution "in no way conflicts with, nor does it deny, the existence of a divine creator." (online version, page 136)
Not stopping there, however, Luskin then asks 2 questions:

(1) Do SGB's actions support Judge Jones’ bold holding that evolution "in no way conflicts with, nor does it deny, the existence of a divine creator"? (emphasis added in original)

(2) In light of these quotes from Judge Jones, what business does a federal judge have ruling on the proper theological interpretation of a scientific theory?
First of all, it is hardly a fair reading of the decision to imply that the Judge was saying that no one could believe evolution conflicts with any concept of God. Here is the section (p. 136) Luskin is complaining about:

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.
The point of the Judge addressing this issue is that there is an element of balancing involved in the Establishment clause. A concept which was absolutely contrary to all religious belief on the one hand and that was marginal science on the other might well require specialized treatment, when taught in public schools, in order for it to remain religiously "neutral." But evolutionary theory is not such a concept. It is accepted by many major denominations of many faiths and it is strong science. Therefore, any effects it might have on religious belief are only "secondary." The Judge was not saying that there are no people who find evolution contradictory to their theology. Nor was he saying that any such theological beliefs are wrong. He is simply saying the opinions of such people are not universal among theists.

Having warmed up it that way, Luskin then gets too close to the giant's arms. He says:

The Kitzmiller ruling thus squares nicely with Judge Jones' publicly stated endorsement of the view that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry" and stated that such "precepts and beliefs ... guide me each day as a federal trial judge."
What Judge Jones actually said, in a paean to "a broad based liberal arts education," was:

As has been often written, our Founding Fathers were children of The Enlightenment. So influenced, they possessed a "great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason." And that reason was best developed, they clearly believed, by a broad based liberal arts education that caused its recipients to engage the world by constantly questioning and persuading others.

... [W]e see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry." At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."

As I hope that you can see, these precepts and beliefs, grounded in my liberal arts education, guide me each day as a federal trial judge. I am daily exposed to many disciplines, I must learn and relearn things constantly, and I am at risk of deciding a case incorrectly if I accept that which is presented to me at face value. [Emphasis added]
Luskin might want to dispute the Founders' views on religion, but then it is hardly fair to put those beliefs in Judge Jones' mouth. He could try to dispute Judge Jones' interpretation of the Founders' views, though I think the Judge is merely expressing the majority opinion among historians, and it is still unfair to put the views themselves in the Judge's mouth. But what is really unfair ... in fact, dishonest ... is to claim that Judge Jones was saying that the Founders' views on religion were what guide him in his daily work as a judge. He was clearly referring to the ideals of understanding the world through reason, of the importance of constantly questioning things, and of the power of a liberal arts education, as his inspiration. What else would we want in a Federal judge? ... What less should we accept?

Finally, Luskin hilariously quotes from United States v. Ballard, a case involving a prosecution for fraud of certain "faith healers." Despite the constant claim that ID is not religion, Luskin is quite right to quote the Court:

Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. ... The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain.
I, too, will defend to the death Luskin's incredible, if not preposterous, belief in the religious concept of Intelligent Design. But nothing, including Ballard, says that I have to let Luskin pretend ID is science in taxpayer-funded schools.

Won't a judge interpreting law take into account what the lawmakers believed that their law was doing? So in that sense, don't the founding fathers' religious positions affect how you should interpret their law?

By the way, "word verification" is getting really difficult now. Thi s could take multiple atttempts.
True enough, but it wasn't their religious beliefs that formed their intent in framing the Establishment clause. It was their beliefs about how government should interact with religion that did that.

And Judge Jones was, I fear, engaging in a bit of "inspiring fable," as is regularly meted out to graduates, in attributing Enlightenment reason indiscriminately to all the participants at the Constitutional Convention. Ages always look golden in retrospect.

I've been meaning to turn off the verification and now have (I hope).
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