This is just a quick follow-up to our post of this morning (Part II). You’ll have to read that to know what we’re talking about here.
A few hours after our post hit the blogosphere, Casey Luskin posted a supplement to his earlier article 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).
We consider Casey’s second post to be in the nature of a desperate motion for a rehearing on our swift dismissal of his earlier effort. (Yes, it seems they read the Curmudgeon’s blog.)
Casey’s earlier article had claimed that:
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.
But Casey cited no authority for that claim. We responded by saying that the appellate court ruled as it did because they were not in a judicial activist mode and there were no precedents to support the creationist student’s case against Dr. James Corbett. We could say that with some authority because we had read the court’s opinion. You can read it too: C.F. v. CAPISTRANO USD (29-page pdf file).
Now Casey’s attempting to remedy the glaring defect we pointed out in his earlier article by providing what he claims is authority for his position, and which the Ninth Circuit somehow overlooked. Casey’s new post at the Discoveroid blog is No, Ninth Circuit, the Relevant Law in C.F. v. Capistrano Unified School District Was Indeed “Clearly Established”. He says, with bold font added by us:
The doctrine prohibiting government inhibition of religion can be traced through some significant U.S. Supreme Court cases.
Yes, but every case he cites in his newest article is — as the lawyers say — “off point.” That’s because those cases all involve litigation against states or state agencies regarding what the courts call “state action.” Bear in mind that Chad — the creationist student — was suing his teacher as an individual defendant. Dr. Corbett is not the state; he’s not even the school district. He’s one individual teacher. Corbett wasn’t following the state’s mandate to lecture as he did. It was Corbett’s own lecture, and there were no legal precedents applicable to his personal remarks.
As we mentioned in our post this morning, the Ninth Circuit said:
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.
And despite Casey’s desperate search for something to back up his earlier claim that such cases really do exist, he hasn’t found any. We suspect that if there were such, Chad’s lawyers would have cited them in their brief. But the appellate court reviewed the cases Chad presented and said:
The only cases that [Chad] 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. [Emphasis in the original opinion.]
So although we regret having caused Casey to scramble around and write a supplement to his earlier article, we’ll have to deny his frantic motion for rehearing. Sorry, Casey.
But we’ll give him credit for one thing — at least this time around Casey didn’t toss in Marbury v. Madison. That one was a bit too much.
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