The Discovery Institute, Casey Luskin, "Judicial Activism", and Blatant Hypocrisy

One of the joys of procrastination is that sometimes if you wait long enough, someone else really will take care of things. I mention that because Ed Brayton just did a good job dismantling Casey Luskin's latest whine about how big bad Judge Jones was such a nasty judicial activist for daring to issue a ruling in the Dover, PA Intelligent Design case that addressed the question of whether or not ID is good science. I was planning a long and detailed post on the same thing, but now all that I have to do is highlight one point that Ed didn't make in his post.

As Ed points out, there were a number of reasons for Jones to rule on that point. For starters, he had to look at that if he wanted to handle the case in front of him the same way that the Supreme Court handled its last creationism case. (That's called following precedent.) He also needed to look at that point in order to apply the test commonly used by the Federal Courts when they look at Establishment Clause cases. (That's also called following precedent.) As Ed also notes, both the plaintiffs and the defendants specifically asked the judge to rule on that point.

What Ed doesn't mention is that the plaintiffs and the defendants were not the only ones who asked Judge Jones to rule on whether or not Intelligent Design is good science:

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; further, the inclusion of such "alternative scientific theories" was clearly authorized by Edwards v. Aguillard. Moreover, plaintiffs' argument rests upon (a) the demonstrably false claim that design theory postulates a "supernatural creator" and (b) discredited and misapplied definitions of science.

...

Thus, whatever the merits and history of DASB's policy, Amicus urges the court to reject plaintiffs' claim that teaching students about the theory of intelligent design necessarily violates the Establishment Clause. If the Court strikes down DASB's policy, Amicus urges the court to fashion relief that does not impugn the constitutionality of teaching about intelligent design, since policies permitting such instruction might reflect valid secular purposes and could enhance religious neutrality.

Who, you ask, is this Amicus who dares risk the wrath of the Discovery Institute by not just asking but urging a Federal judge to reject the claim that Intelligent Design is inherently religious and rule instead that Intelligent Design is a scientific theory? I'll give you a hint: it wasn't the ACLU.

It was the Discovery Institute.

The quote above was taken from the revised Amicus brief (pdf) that they filed in the case. The same language also appears in their first attempt at an Amicus brief in the case (pdf) - the one that the court struck from the record because it was such an obvious attempt to get the "expert" opinions of their guys into the record without the inconvenience of cross-examination.

26 responses so far

  • Paul Burnett says:

    Jon Buell helped make Judge Jones appear to be an "activist judge" when Buell lied multiple times (under oath) when asked if the Foundation for Truth and Ethics was a Christian organization.
    And Michael Behe helped make Judge Jones appear to be an "activist judge" when Behe stated (under oath) "?the literature has no detailed rigorous explanations for how complex biochemical systems could arise by a random mutation and natural selection?" only to be presented with a stack of 58 documents refuting his lie and then say "I am not confident that the immune system arose through Darwinian processes, and so I do not think that such a study would be fruitful."
    Buckingham lied; Bonsell lied...it was pretty obvious to Judge Jones what intelligent design was made of.

  • One just looks at the DI and marvels.
    When was the tipping point, after which any pretense at consitency, honesty, or ordinary decency, seemed no longer to be worth attempting by anybody associated with the CSC?
    Glen D
    http://tinyurl.com/2kxyc7

  • ellazimm says:

    To be fair I think they also said:
    "While Amicus believes that there are good reasons to regard intelligent
    design as scientific, Amicus recognizes that the question itself may be
    non-justiciable. Questions are non-justiciable when there is "a lack of
    judicially discoverable and manageable standards." Vieth v. Jubelirer,
    541 U.S. 267, 277-78 (2004). Even expert philosophers of science have
    been unable to settle the question, "What is science?" Still less is
    this question subject to "judicially discoverable and manageable
    standards." Insofar as plaintiffs base their argument on the claim that
    design is inherently unscientific, and thus inherently religious,
    finding the scientific status of intelligent design non-justiciable
    would undermine plaintiffs' case."

  • If you get to the point where you can't distinguish between science and IDC crud, you should probably seek professional care.

  • ellazimm says:

    And there was the 85 Scientist Amicus brief which said in part:
    "The plaintiffs have invited this Court to determine the status of
    intelligent design as science. Because the definition of science and the
    boundaries of science should be left to scientists to debate, this Court
    should reject the relief requested by the plaintiffs, and affirm the
    freedom of scientists to pursue scientific evidence wherever it may
    lead."
    I'm not supporting or making these arguments, I just want to make sure the interpretations are accurate.

  • Dale Husband says:

    ellazimm, all you have done is illustrate how the Discovery Institute contradicts itself at every turn to cover its @$$. As for the other brief put forth by 85 scientists, I wonder if some of them were affiliated with the DI or with Creationists groups like the Institute for Creation Research. I notice that you did not identify any of the scientists in question, or even give a link to where we can find a copy of that Amicus.

  • ravilyn sanders says:

    Ellazimm,
    Is this the 85 "scientist" amicus brief you are talking about?
    http://www.pandasthumb.org/archives/2005/10/the-pseudo-scie.html

  • _Arthur says:

    "the freedom of scientists to pursue scientific evidence wherever it may lead."
    Right, scientific evidence is best pursued in the classrooms, is that it ?

  • Steverino says:

    Does Luskin not understand that we can read...that we have access to the internet...that we can verify with the court transcrpits???
    We can, we do and we see that his is being dishonest.

  • ellazimm says:

    Yup, that was the brief I was referring to. 🙂 I was just trying to understand how all the statements interacted. I am not trying to support the DI, I'm just trying to understand the arguments and what was said. I find the physical evidence so consistent with evolutionary theory that I sometimes wonder where people get their ideas from so I try and make sure I have given everyone their turn. Don't worry, I'm not a troll or a cdesign proponentsist, just someone who is trying to figure out what all the fuss is about. I find the social issues more interesting than the scientific ones.

  • Larry Fafarman says:

    ellazimm said ( November 26, 2007 2:02 PM ) --

    To be fair I think they also said:
    "While Amicus believes that there are good reasons to regard intelligent design as scientific, Amicus recognizes that the question itself may be non-justiciable."

    also
    ellazimm said ( November 26, 2007 2:07 PM ) --

    And there was the 85 Scientist Amicus brief which said in part:
    "The plaintiffs have invited this Court to determine the status of intelligent design as science. Because the definition of science and the boundaries of science should be left to scientists to debate, this Court should reject the relief requested by the plaintiffs, and affirm the freedom of scientists to pursue scientific evidence wherever it may lead."

    Discovery Institute's Center for Science and Culture's senior fellow David DeWolf, a law professor, was one of three co-authors on both the DI amicus brief and the 85 scientists' amicus brief that urged Judge Jones to not rule on the scientific merits of ID -- also, DeWolf was designated as "the attorney of record" on the 85 scientists' amicus brief. So what DeWolf appeared to be telling Judge Jones was, "we urge you to not rule on the scientific merits of ID, but if you do, we urge you to rule that ID is good science." So DeWolf was just trying to cover all the bases -- I don't see anything wrong with that.
    I think that one thing that pissed DI off about Jones was that ruling on ID-as-science was overkill -- under the Lemon test, the defendants had already lost because of their religious motivations. In baseball, there are three ways to put out a runner -- fly out, force out, and tag out -- but only one is necessary. And the World Series ends once one side has won four games.
    Actually, if Judge Jones had used the endorsement test instead of the Lemon test (federal courts are not required to use the Lemon test), he could have ruled that it doesn't matter whether ID is science or religion -- the ID statement could have been ruled constitutional as a means of reducing Darwinism's offense to the fundies so that they would feel less like "political outsiders."

  • John Marley says:

    Larry:
    As long as fundies want the government to back their religion (and only their religion), they are political outsiders.
    Also, ID has been shown to be unscientific many times, before and since Dover. It has given itself away as a political/religious agenda that has no interest in real science.
    As you point out, Judge Jones didn't have to rule that ID isn't science. But he was asked to do so by the plantiffs and defendents. He was also asked to not do so by interseted parties who were at best peripherally involved in the trial. Maybe he felt that requests from the actual participants in the trial carried more weight.

  • W. Kevin Vicklund says:

    Larry, as I have repeatedly told you, Jones did use the endorsement test. It was under the endorsement test, not the Lemon test, that he reached the conclusion that ID wasn't science.
    Besides which, there is an extensive series of Supreme Court cases that hold that the government doesn't have to cater to a specific religion's sensitivities if the government action is purely secular. This series of cases includes O'Connor's concurrence in Lynch.

  • Larry Fafarman says:

    John Marley wrote,

    As long as fundies want the government to back their religion (and only their religion), they are political outsiders.

    You are only arguing my point for me. Under the endorsement test, the Dover ID policy served the function of making the fundies feel less like political outsiders.
    A lot of people take the view that the government is backing only the religion of Darwinism. And even under the Dover ID policy, only Darwinism was actually taught.

    Also, ID has been shown to be unscientific many times, before and since Dover.

    That continues to be debated. A lot of people view Darwinism as being unscientific or as incompatible with their religions. Under the "political insider/outsider" principle of the endorsement test, it doesn't matter whether ID is unscientific or even whether ID is religious. I assert that under a "workmanlike" (Judge Jones' term) application of the endorsement test, the Dover ID policy is constitutional. You are like an "activist judge," letting your own prejudices control the positions you take.

    As you point out, Judge Jones didn't have to rule that ID isn't science. But he was asked to do so by the plantiffs and defendents.

    He was not obligated to rule on the scientific merits of ID just because both sides asked him to. That is ridiculous.
    In my legal research on the unconstitutional California "smog impact fee" on out-of-state vehicles, I read a lot of opinions in commerce clause cases, and many of those opinions said that the court's legal analysis is supposed to stop as soon as a solid conclusion is reached. For example, a commerce clause analysis may consist of answering the following series of questions in order: (1) Does the challenged action burden interstate commerce? (2) Does the challenged action serve a compelling state interest? (3) Is there an absence of less burdensome alternatives? If, for example, it is decided that the challenged action does not serve a compelling state interest, then it is not necessary to decide whether or not there are less burdensome alternatives.

  • Larry Fafarman says:

    Kevin Vicklund said,

    Jones did use the endorsement test.

    Yes, I know that. One of my points was that he did not have to use the Lemon test. The Supreme Court itself has sometimes not used the Lemon test. Justice Scalia said way back in 1993,

    "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again .....no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart...and a sixth has joined an opinion doing so........When we wish to strike down a practice it forbids, we invoke it....when we wish to uphold a practice it forbids, we ignore it entirely.......I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced." Citations omitted. -- from Concurrence in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993).

    Also, I feel that under proper interpretation of the "political insider/outsider" principle of the endorsement test, the Dover ID policy is constitutional.

    Besides which, there is an extensive series of Supreme Court cases that hold that the government doesn't have to cater to a specific religion's sensitivities if the government action is purely secular.

    The issue here is not whether the government "doesn't have to" cater to religious sensitivities, but whether the government should be prohibited from catering to religious sensitivities. No one is suggesting that the courts should require the ID policy.

  • Mike Dunford says:

    Wow, Larry. I don't think it's possible for there to be a dumber interpretation of "political outsider/insider" than the one you just came up with.
    If the government chooses to cater to the sensitivities of a single religious group (or, for that matter, a subset of religious groups), then the government is sending a message that those religious groups are insiders and everyone else is not.
    When the government says that it is not going to cater to the sensitivities of any religious group, it says that all the religious groups are equal.
    That's so simple that I'm actually surprised that you fail to grasp it.

  • JohnnieCanuck, FCD says:

    It's simple, actually.
    If you limit my ability to impose my religious beliefs on everyone, you are violating my religious freedoms, and I get to claim martyrdom.

  • Larry Fafarman says:

    Mike Dunford said,

    I don't think it's possible for there to be a dumber interpretation of "political outsider/insider" than the one you just came up with.

    A lot of people view Darwinism as incompatible with their religious beliefs and even a religious belief itself. Yet only Darwinism is actually taught in American public schools. So the Darwinists are already the "political insiders."
    In an open letter concerning the Selman v. Cobb County evolution-disclaimer textbook sticker case, attorney Edward Sisson said,

    If it is clear from the record that the Sticker was merely a sop offered to a now-disfavored minority (the record shows that this is in fact what happened), then the entire "sequence of events" cannot reasonably "communicate to those who endorse evolution that they are political outsiders" as the trial court held. Instead, it can only communicate to them that they do not yet have such an overwhelming political majority as to be able to exclude the view of the dissenters altogether from the curriculum. The fact that all available textbooks teach evolution, and that the Cobb County school board chose the most hard-line pro-evolution text, and chose to include that evolution material in the curriculum, clearly communicates to those who endorse evolution that they have become the dominant political insiders, and the Sticker merely shows that they do not have absolute monopoly control -- yet.
    It is deeply disturbing that the trial court felt that failure to give the pro-evolution side absolute monopoly control was equal to sending a message to the pro-evolution side that they are "political outsiders." Nonsense. Denying someone monopoly control of an issue is not the same as declaring that person a political outsider on that issue. That the trial court could judge such a record to have such an effect bespeaks an extreme bias.

    Albert Alschuler, a law professor emeritus at Northwestern University Law School, wrote of the Dover case,

    The court offers convincing evidence that some members the Dover school board would have been delighted to promote their old time religion in the classroom. These board members apparently accepted intelligent design as a compromise, the nearest they could come to their objective within the law. Does that make any mention of intelligent design unconstitutional? It seems odd to characterize the desire to go far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens. The Dover opinion appears to say that the forbidden preference taints whatever the board may do, and if the public can discern the board?s improper desire, any action it takes also has an unconstitutional effect. If board members would like to teach Genesis as the literal truth, the board may not direct teachers even to mention the anomalies in the theory of natural selection that the court itself recognizes. The court seems to declare, "Because we find that you would like something you can't have, we hold that you can't have anything."

    Two decisions against evolution disclaimers, Freiler v. Tangipahoa Parish and Selman v. Cobb County, came close to being overturned.

  • Jud says:

    Larry Fafarman wrote: "[M]any of those opinions said that the court's legal analysis is supposed to stop as soon as a solid conclusion is reached."
    A common mistake by non-lawyers (or bad lawyers) is to extend discussions in particular cases beyond their contexts. In many cases there are good reasons to stop once the bare minimum explanation and justification for the decision has been laid out. But cases on controversial matters likely to be raised on appeal and/or in other lower courts are examples of instances where one does *not* want to stop with the bare minimum. It is to the benefit of other courts, either an appellate court considering the appeal of the case, or lower courts considering similar cases, to have as much information as possible about the judge's reasoning in order to determine whether or not they wish to follow that reasoning.

  • Larry Fafarman says:

    Jud said,

    But cases on controversial matters likely to be raised on appeal and/or in other lower courts are examples of instances where one does *not* want to stop with the bare minimum.

    Controversial matters in the Dover case were not likely to be raised on appeal because the case was not likely to be appealed because the pro-ID school board members had been replaced by anti-ID school board members. Also, under the Lemon test, the case against the religious motivations of the defendants was airtight. If Jones had based his decision solely on the defendants' religious motivations, he could have avoided the time-consuming and costly ID-as-science phase of the trial. Also, appeals court judges can remand a case if they feel that the lower court needs to rule on more issues in order to properly decide the case.
    Also, courts are not authorized, qualified, or suited to decide controversial issues about science or religion. IMO courts should avoid deciding such issues when not absolutely essential to decide a case -- for example, it might be essential to decide a scientific question in order to decide a product liability case. How can we have a single judge -- or even any number of judges -- unnecessarily decide questions about evolution that have stymied scientists and philosophers for generations? If we let courts decide questions about evolution, why not also let the courts decide questions about the big bang theory, string theory, etc.?
    As I pointed out, the courts can completely avoid scientific and religious issues in evolution-disclaimer cases by avoiding the discredited Lemon test and using the endorsement test's "political insider/outsider" principle to rule that the evolution disclaimers serve the purpose of reducing Darwinism's offense to fundies and thus making the fundies feel less like political outsiders.
    Also, the courts often have no qualms about wasting judicial resources by dismissing cases over minor technicalities -- examples are the Marco DeFunis case and Hallstrom v. Tillamook County.

  • Kesh says:

    A lot of people view Darwinism as incompatible with their religious beliefs and even a religious belief itself. Yet only Darwinism is actually taught in American public schools. So the Darwinists are already the "political insiders."
    Fundamental mistake there, Larry (no pun intended). While some people may regard "Darwinism" as a religious belief, that does not make it so. Some people regard heliocentrism as a religious belief. Are you going to argue that the alternative should be taught in schools so that they don't feel like outsiders, as well?
    The insider/outsider rule does not mean that anyone who labels something "religious" automatically gets an invite to teach their opposing view in science class.

  • Jud says:

    Larry Fafarman wrote: "Also, under the Lemon test, the case against the religious motivations of the defendants was airtight."
    Thanks for that vote of confidence for the ruling in plaintiffs' favor. Many of us feel the case was also airtight on the other bases the court used for its decision.

  • Olorin says:

    Evolution News and Views is still (12/01) screaming that the DI asked Judge Jones not to decide whether ID is science. The best they can do is quote-mine their own brief, to come up with:
    "Because the inclusion of intelligent design in the science curriculum can serve a variety of important secular purposes, and because it has a primary effect of improving science education and even promoting religious neutrality, the plaintiffs

  • Larry Fafarman says:

    Kesh said,

    While some people may regard "Darwinism" as a religious belief, that does not make it so.

    While some people regard ID as a religious belief, that does not make it so.

    The insider/outsider rule does not mean that anyone who labels something "religious" automatically gets an invite to teach their opposing view in science class.

    But ID was not "taught" in Dover science classes -- it was only mentioned.
    Jud said,

    Larry Fafarman wrote: "Also, under the Lemon test, the case against the religious motivations of the defendants was airtight."
    Thanks for that vote of confidence for the ruling in plaintiffs' favor.

    The federal courts are not required to use the Lemon test, but since Judge Jones decided to use the Lemon test, he should have stopped the legal analysis as soon as a solid decision was reached.
    Olorin said,

    If this is the most favorable statement they can find in a brief otherwise full of language requesting a decision on the science of ID, then they don't have much to stand on.

    The Discovery Institute was in effect telling Judge Jones, "we urge you to not rule on the scientific merits of ID, but if you do, we urge you to rule that ID is good science." The DI was just covering all the bases.
    No sane person wants the courts to rule on the ID-as-science question. Can you imagine the effect of a pro-ID or anti-ID ruling by the Supreme Court?

  • W. Kevin Vicklund says:

    The federal courts are not required to use the Lemon test, but since Judge Jones decided to use the Lemon test, he should have stopped the legal analysis as soon as a solid decision was reached.

    Fine. Since Judge Jones ruled on whether ID is science as part of the endorsement test before ruling on the Lemon test (as required by 3rd Circuit precedent), that means he would have simply not considered the Lemon test at all. Or possibly, you can throw out the three or so pages of Lemon effect prong. Either way, you still end up with Jones ruling on whether ID is science. The 3rd Circuit precedent is clear - the endorsement test is favored over the Lemon test and must be applied first, but the Lemon test should also be applied in case a higher court decides it is the proper test.

  • Since Judge Jones ruled on whether ID is science as part of the endorsement test before ruling on the Lemon test (as required by 3rd Circuit precedent), that means he would have simply not considered the Lemon test at all.

    Jones could have followed Supreme Court precedent instead of 3rd Circuit precedent, and the Supreme Court could hardly expect lower courts to use the Lemon test when the SC itself has sometimes not used it. Way back in 1993, Justice Scalia admitted that the Supreme Court does not always use the Lemon test:

    When we wish to strike down a practice it forbids, we invoke it....when we wish to uphold a practice it forbids, we ignore it entirely -- from Concurrence in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993).

    Either way, you still end up with Jones ruling on whether ID is science.

    No, there are a number of ways that Jones could have avoided ruling on the ID-as-science issue. He could have stopped the Lemon analysis immediately after ruling on the purpose prong; he could have avoided the Lemon test by using the endorsement test to rule that the evolution disclaimer made the fundies feel less like political "outsiders"; and I recently learned that the ID-as-science issue could be dismissed as nonjudiciable --

    Among the tests for determining the existence of a "nonjusticiable" or "political" question is a lack of judicially discoverable and manageable standards for resolving the question. -- from Vieth v. Jubelirer, 541 U.S. 267

    the Lemon test should also be applied in case a higher court decides it is the proper test.

    If the Lemon test is not used and a higher court decides that it is the proper test, the case can be remanded.
    IMO the Lemon test sucks and is never a proper test.
    Judge "I am not an activist judge" Jones has been going around the country giving lectures supposedly "educating" the public about how judges work but has actually been misinforming the public. Jones emphasizes the role of precedents and claims that the work of judges is "workmanlike," giving the false impression that there is only one decision that can be consistent with precedents whereas many different decisions can be consistent with precedents. What a charlatan.