Casey, Corbett, & the Constitution, Part II

Look what we found at the blog of the neo-theocrats at the Discovery Institute‘s creationist public relations and lobbying operation, the Center for Science and Culture (a/k/a the Discoveroids, a/k/a the cdesign proponentsists).

The article is titled Ninth Circuit Uses Outcome-Based Jurisprudence to Deny Justice to Darwin-Doubting Student, and it’s by Casey Luskin, everyone’s favorite creationist. He seems to be the only Discoveroid who isn’t a “fellow,” so last year your Curmudgeon compassionately remedied that cruel insult (see: Casey Luskin Is Named a Curmudgeon Fellow). Okay, here are some excerpts, with bold font added by us:

Back in August, the Ninth Circuit Court of Appeals denied justice to a Darwin-doubting student by refusing to rule on the merits of a lawsuit. A lower court had previously found a public high school teacher violated a student’s First Amendment rights by disparaging creationist religious views in the classroom.

The Discoveroids are finally getting around to commenting on the appellate decision in a case that ended a couple of months ago. Here’s our post on it: James Corbett Wins His Appeal. All the background information you need is there. Let’s see what Casey says:

In 2009, the lower federal court found that Corbett had violated the U.S. Constitution by “disparaging” those beliefs. What did the teacher say, exactly? He called creationism “superstitious nonsense.”

True. The trial court’s ruling is still available online: trial court’s 37-page ruling (pdf file). Let’s continue with Casey’s article:

There’s an extensive body of case law from both the U.S. Supreme Court and the Ninth Circuit holding that it is illegal for the state to “inhibit,” “disapprove of,” “oppose,” “evince a hostility to,” show an “an attitude antagonistic to theistic belief” or attempt to “discredit” religion.

Casey doesn’t give us any citations to support his statement. That’s interesting, because in the appellate court’s decision (see C.F. v. CAPISTRANO USD, a 29-page pdf file ), they say the opposite:

More to the point, we are aware of no prior case holding that a teacher violated the Establishment Clause by appearing critical of religion during class lectures, nor any case with sufficiently similar facts to give a teacher “fair warning” that such conduct was unlawful.

[…]

The only cases that Farnan argued in his briefs clearly establish the law in the relevant educational context involve claims that school officials were promoting religion rather than expressing hostility toward it, and challenge systemic actions such as state laws and school district policies rather than parsing individual teachers’ classroom discussions.

[…]

[W]e cannot conclude that a reasonable teacher standing in Corbett’s shoes would have been on notice that his actions might be unconstitutional.

And in the concluding part of the appellate opinion the court says:

“[T]he Establishment Clause presents especially difficult questions of interpretation and application,” and we cannot expect Corbett to have divined the law without the guidance of any prior case on point.

Back to Casey’s article:

It’s been said that selective enforcement of the law is a hallmark of tyranny. Is that what’s going on here?

Huh? The court couldn’t have been more clear. There were no precedents supporting the creationist student’s position, so the appellate court declined to take an activist role by making new law.

We continue, as Casey then instructs us — and the Ninth Circuit — as to the true function of the judiciary:

But isn’t it a court’s job to establish what the law is, whether the question is difficult or not? Yes. In the foundational U.S. Supreme Court case Marbury v. Madison, Justice Marshall instructed future generations of jurists that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”

Casey is quote-mining the Supreme Court. Marbury v. Madison is one of their most famous decisions, and it might require a semester to explain and discuss it in detail. We’ll take the easy way out and rely on Wikipedia, which says:

It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional”, a process called judicial review. The landmark decision helped define the “checks and balances” of the American form of government.

That’s fascinating, but it doesn’t have anything to do with the Corbett case. It’s certain, however, to impress the Discoveroids’ mindless readers that Casey has cited a famous decision — one which none of them will ever read or understand.

Here’s more from Casey, and in this excerpt we have no idea what his quote marks are doing, but the quote marks and italics are his:

By refusing to say “what the law is,” the Ninth Circuit abdicated its responsibility to assess and protect the rights of both students and teachers in public schools. The Appeals Court let the teacher off the hook because he supposedly lacked “guidance” from the case law, but imagine if all courts behaved like this one — it would lead to absurd results: By refusing to rule on the merits of this case, the Ninth Circuit has perpetuated an environment where teachers lacks such “guidance.”

We’re not sure what to make of that, other than the fact that Casey is confused — but your Curmudgeon is here to help. Hey, Casey: If the state of California wants to give guidance to its teachers it will pass appropriate legislation. Got it, Casey? Legislation! Or maybe the school board, if it’s authorized by statute, will draft some administrative rules. Then the courts will have something with which they can work. That’s the system. The courts aren’t supposed to conjure up rules whenever it suits them — and Marbury v. Madison doesn’t say otherwise.

Presumably, Casey is unaware of all that, and he wants the Ninth Circuit to instruct teachers as to how they’re supposed to teach. But that wouldn’t be judicial activism — oh no, of course not. And somehow Casey’s remedy is justified by Marbury v. Madison. Yeah, sure it is.

We’re skipping a lot, but there are a couple of interesting goodies near the end. Casey says:

Given the religious nature of creationism, by the way, I agree that such religious creationist views about life’s origins should not be advocated in public school science classrooms.

Don’t be confused. The Discoveroids always insist they’re not creationists. They (and they alone) narrowly define creationism to mean only the Genesis-based young-earth version of creationism. Relying on their private definition, according to which even William Jennings Bryan wasn’t a creationist (he was an old-earther), the Discoveroids claim to be scientific and secular. Okay, one last excerpt:

But, as I argue in this law review article [link omitted], if it is illegal to promote creationism in public schools, then it should be equally illegal to bash it in such a venue.

Hey, good point, Casey! Similarly, if it’s illegal to promote, say, Nazi ideology in the public schools, then it should be equally illegal to bash it. Fair’s fair, right? Oh, that law review article he mentions is something he wrote that was published in the prestigious Liberty University Law Review. We discussed it a year ago (see Casey, Corbett, Creationism, & the Constitution).

Well, dear reader, we’ve exhausted our patience for Casey’s article, but go ahead and read it all, if you like. Perhaps you’ll find something of merit there. Let us know if you do.

See also: Casey, Corbett, & the Constitution, Part III.

Copyright © 2011. The Sensuous Curmudgeon. All rights reserved.

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4 responses to “Casey, Corbett, & the Constitution, Part II

  1. The battle for the legitimacy of intelligent design continues to be fought not in the realm of science, but in the courts, legislatures, and public opinion. When the crackpots lose a case in the courts, it is the judge’s fault. (When they lose in the legislature, it is the fictional but all powerful Darwin lobby.)

    In this case Casey accuses the federal judges of bowing to political correctness and being afraid of the outcome of an analysis. Does he forget that federal judges have lifetime tenure? Perhaps, even with tenure, the judges are simply weak minded, let’s see… of the three judges, two went to Harvard and one to Stanford law schools. Not a lot of weak minded graduates of those schools. Well, perhaps they are biased – they were appointed by Carter, Reagan, and Clinton. We have two democrats, one of which was quite religious, and a reagan republican. Maybe they were just timid, despite tenure – we note that one was interred as a Nisei Japanese in WWII but then served in the USMC in the early 50’s and is the first Japanese-American federal judge – probably not a timid type. The three judges appear older, wiser, and infinitely better educated than young Casey. However, Casey, who after all publishes in the Liberty U’s journal, steps up to the plate and attempts to take them down.

    Oh, somewhere in this favored land the sun is shining bright;
    The band is playing somewhere, and somewhere hearts are light,
    And somewhere men are laughing, and somewhere children shout;
    But there is no joy in Mudville – mighty Casey has struck out.

  2. Ed says: “But there is no joy in Mudville – mighty Casey has struck out. ”

    Not for the first time.

  3. A baseball bat is really heavy and hard to swing when you’re an attack gerbil.

  4. Ceteris Paribus

    Casey said: “It’s been said that selective enforcement of the law is a hallmark of tyranny. Is that what’s going on here?”

    To my mind Casey’s statement is what a psychologist might use as textbook example of projection. Even without the woo factor of psycholgy, the statement is at least double dipped in polyurethane irony.

    Here’s why. Looking at the district court verdict, it appears me that the plaintiffs did not go into court with clean hands. The complaint filed as pointed out by the judge: “Here, Farnan contends that Corbett violated the Establishment Clause by making comments hostile to religion and to Christianity in particular. That construction of “religion and to Christianity in particular” is repeated twice more in the decision.

    My thinking is that as a legal matter it should have been sufficient to accuse Corbett of offending religion in general, without bothering to mention any particular flavor such as Christianity. Unless of course, the whole exercise was designed to get the words “Christianity in particular” included in a favorable verdict.

    If that had occured, Casey et all would be out spouting that a court had proved their religion occupied a favored place among the diverse religions in the US. No longer would they just have to mangle history and claim Christianity was given a priveledged status by the founders.

    There’s also a side issue that the Farnam complaint attempted to have the court declare that secularism was itself a religion.

    The whole case seems troublesome. The court noted there was some kind of long standing unsettled greivance against Corbett by the Farnams; the Farnam kid was sent to school equipped with a tape recorder to collect a stream of lectures from which evidence could be fished; and the fact that the trial judge point out that the Farnams had the brazen courage to provide the court with an abridged version of one of Corbett’s statements as evidence.

    People with projects like the Farnams should not be cluttering up the courts with their peevish viewpoint that their majority religion is somehow being picked upon by secular bullies, and supported by the liberal courts. It is clear to me that it is Casey himself that wishes to employ selective enforcement of the law and the tyranny of the courts in his continuing battle against reason.