MANY OF YOU are gaping in disbelief at the series of inane articles appearing on the blog of the neo-theocrats at the Discovery Institute’s Center for Science and Culture (a/k/a the Discoveroids), attempting the absurd and woeful task of unilaterally re-arguing the case of Kitzmiller v. Dover Area School District.
We’ve mentioned (and linked to) some particularly silly articles by Discoveroid Casey Luskin, in which Casey defends Michael Behe‘s concept of “irreducible complexity” as evidence of Intelligent Design (ID), and the devastating rebuttals to Casey’s articles recently posted by Kenneth Miller. That’s all in our recent post: Creationism and the Real World.
It’s been three years since the Dover case. It wasn’t appealed. No school board since then has implemented a pro-ID policy. Even the Discovery Institute must know that Casey isn’t doing well with this issue, but they let him write article upon article about it.
So the question presents itself: Why are the Discoveroids doing this?
We suspect it’s not to seriously support Behe’s lost cause, but to provide talking points for some of the “experts” who are soon to be testifying at the Jan 21 hearings in Texas about removing the “strengths and weaknesses” language from their science education standards.
Bear in mind that, notwithstanding all the propaganda to the contrary, the mission of the Discoveroids isn’t science. As is revealed in The Wedge Document, their purpose is — and always has been — social revolution. They’re nowhere in the world of science, industry, academia, etc. They know this. Aside from religion, which is the natural home of ID and creationism, the only arena where the Discoveroids can succeed is in politics.
Is that realistic? It could be. Consider that perhaps all social change in America has come about through a long, deliberate process leading ultimately to a US Supreme Court decision that reverses previous policies. This — not science — is the goal of the Discoveroids.
The Wedge Document was authored by Phillip E. Johnson, a retired UC Berkeley law professor. Whatever one may think of the legal talents of Discoveroids like Casey Luskin, Philip Johnson is formidable. He was once a law clerk for the Chief Justice of the US Supreme Court, Earl Warren. Clerking for the US Supreme Court is probably the most prestigious job to which a law graduate can aspire. Johnson is the real thing, and he knows what he’s doing.
Speaking of social revolution, consider the New Deal. Many of Roosevelt’s legal programs were widely regarded as unconstitutional when enacted, and many were struck down for that reason. For example, the case of United States v. Butler invalidated the New Deal National’s Agricultural Adjustment Act (AAA). For extra credit, you should know that the winning side in that case was represented by George W. Pepper. In one of history’s curiosities, he was a founder of the law firm that defeated ID in the Dover litigation. For double extra credit, the Butler case is one of those rarities that struck down a Congressional law because Congress had usurped one of the powers reserved to the states under the Tenth Amendment. (How times have changed!)
A key player in planning, choosing, and arguing anti New Deal cases was Frederick H. Wood (who has no Wikipedia article). His role in those activities is discussed here: Right-Wing Anti-New Deal Litigation Strategy in the 1930s. Wood appeared in ten key cases before the US Supreme Court. He was a member of the American Liberty League (not to be confused with the infamous Liberty Lobby). The stated purpose of the League was to “defend and uphold the Constitution” and to “foster the right to work, earn, save and acquire property.” (O the horror!)
This planned approach to causing social change through litigation isn’t limited to conservatives (who ultimately failed in defeating the New Deal). The NAACP also followed a long-term coordinated strategy. See: THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION. We haven’t researched it, but we suspect that many of the legal landmarks in US judicial history have likewise been the result of that kind of long deliberate process. Philip Johnson knows this. He learned from Earl Warren. Now you know it too.
Groups with an interest in bringing about social change through litigation choose their cases carefully. They don’t want to appeal the “wrong” case with the “wrong” facts, because they might lose, and that would set a precedent they don’t want. Instead, they bide their time, waiting for just the right situation. Sometimes they help out in cases at the trial stage, in order to create the kind of record they need. They may even help in planning the events that will lead to litigation, so that all the facts will be to their liking.
There’s nothing wrong with this; it’s how the game is played. The facts of many major cases have been carefully scripted — intelligently designed, as it were. It’s as American as apple pie for a group of interested people to create a case in order to challenge a law they find disagreeable. They need the right parties, the right incident, the right location, the right lawyers, etc. It’s not easy, because most cases go nowhere in the appellate system. Philip Johnson knows the game, and he has always been the master strategist for the Discoveroids.
Let’s go back to the Dover case. With the consent of both sides, one of the key legal concepts that Judge John E. Jones III relied upon in deciding that case was the Lemon test. It’s the current standard for courts to determine if a state action (that includes the actions of local school boards) violates the First Amendment. That test comes from Lemon v. Kurtzman, 403 U.S. 602 (1971), in which the US Supreme Court tried to bring some order out of the chaotic mess of earlier Establishment Clause cases, saying:
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases.
Those three tests which the Supreme Court “gleaned” from earlier cases are now collectively referred to as Lemon test, which has three “prongs.” A state action (like a school board’s pro-ID policy) must pass through those prongs in order to survive a First Amendment challenge. They are: First, the statute (or school board policy, or any state action) must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; and Third, the statute must not foster “an excessive government entanglement with religion.” (Those quote marks are in the Lemon opinion, because that language was taken from an earlier case.)
If a state action violates any one of the three prongs of the Lemon test, then it’s in violation of the First Amendment. The Dover case was inherently simple, because members of the hapless school board had made so many public statements about their religious purpose in implementing a pro-ID policy that the first prong (secular purpose) destroyed them. Then they added to their difficulties by lying about this in court, a fact mentioned by Judge Jones.
This is undoubtedly why the Discoveroids stayed away from the Dover case. They knew it was a loser. Oh, they gave information to the school board initially, and they filed an amicus brief, but otherwise, as an organization, they were conspicuously absent — except for the testimony of Michael Behe as an “independent” ID expert. See: Kitzmiller v. Dover: The Role of The Discovery Institute.
The ID side got somewhat blindsided by the superb experts on the pro-science side, and by the detailed opinion of Judge Jones, which totally demolished any pretense that ID is science; but we think that this doesn’t really matter to the Discoveroids. They know they have no science.
One thing the Discoveroids learned from Dover is that the officials who mandate or tolerate teaching ID need to show an entirely secular motivation. When the the next round of litigation comes, the decision makers want a record they can point to that provides an entirely “scientific” justification for their actions. If the school board or state legislature can restrain themselves from blurting out the “G-word” when deciding on a pro-ID policy, and if they can get a few witnesses show up at their public hearings and make scientific-sounding noises, the legislature or school board can then declare that evolution’s “weaknesses” should be taught because there’s a scientific “controversy.” A case with facts like that is the holy grail of the Discoveroids.
This strategy (creating a record of secular motivation) was used in the Louisiana legislature, where the committee hearing was loaded up with science witnesses from a bible college. See: Louisiana Legislature Used Creation Science Witnesses. The future of the game in Louisiana is now up to local school boards, so we’ll have to see how things play out there.
Texas is another part of the game. Their state board of education is now debating what should be the standards for teaching science. Casey Luskin’s Discoveroid articles, regardless of their lack of merit, are intended to be talking points for witnesses. It’s all part of the effort to create a secular record. That may be difficult, however, considering the public writings of Don McLeroy, the creationist dentist who is chairman of the Texas Board of Education. See: Texas Anti-Evolution Debate: Pure Creationism.
It seems that the only lesson the Discovery Institute learned from Dover is that they’ve got to be careful about concealing their motives. But what good will a case with a “perfect record” do for the Discoveroids? Even if the next ID case can escape the “secular purpose” prong of the Lemon test, won’t one of the other prongs impale it?
Maybe, but the Lemon test itself might not survive the next Supreme Court decision. In their dissent to Freiler v. Tangipahoa Parish Board of Education back in 2000, Justices Scalia and Thomas, joined by Chief Justice Rehnquist (now-deceased), indicated their desire to revisit Lemon.
So there’s reason for the Discoveroids to hope, and to keep looking for the perfect case. It may come out of Louisiana, or maybe Texas, or maybe some other state. But it will come. And when it does, what will happen?
We don’t know, of course. It depends on the Supreme Court’s willingness to breach the “wall of separation” between church and state. But we humbly remind you of our own modest suggestion for an idea to be added to the arguments of the pro-science side: Discovery Institute’s “Academic Freedom Act” — Presumptively Void.
The point we’re trying to make is this: Don’t get over-confident because the Discoveroids are so amusingly inept at science. ID isn’t about science. It never was. It’s all about Philip Johnson’s strategy for achieving social change by means of a decision of the US Supreme Court. When that change comes, if it does, you’re not going to like it. If you read Johnson’s Wedge Strategy, you’ll understand that what the Discoveroids want is theocracy.
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