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.