The relentless countdown — or count up — continues. The Discovery Institute is working its way up to their #1 reason why the decision on 20 December 2005 by Judge John E. Jones III in the case of Kitzmiller v. Dover Area School District was all wrong and is of no importance whatsoever. We anticipate that their number one reason will appear on the 20th, the day we celebrate Kitzmas.
The Discoveroids’ latest is Ten Myths About Dover: #6, “Judge Jones, No Activist, Stayed Strictly Within His Authority”.
Like the first two posts in the Discoveroid series (#10 and #9), this one was written by Sarah Chaffee, a new Discoveroid staffer who is neither a biologist nor a lawyer. At first, her byline also appeared on #8, but that got changed to Casey, who also wrote #7. The byline change prompted speculation that Sarah was a gentle flower who couldn’t handle the criticism she saw on the internet, and she had dropped out — at least from her role in this series. But her byline is on this one, so the speculation was wrong. Sarah’s faith is strong! We’ll give you some excerpts from her new post, with bold font added by us.
Judge John E. Jones III’s holding on whether intelligent design is science is probably the most celebrated part of the Kitzmiller v. Dover decision. … But the section on whether ID is science does not display sound legal reasoning. On the contrary, Judge Jones overstepped his authority.
Really? This should be fun. Sarah tells us:
To be sure, he claimed that his decision was not that of a judicial activist:
[Sarah quotes from the Judge’s opinion:] Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID [intelligent design], who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.
Right. And as we pointed out earlier in Discoveroids’ Anti-Kitzmiller Series: #9, the parties to the case agreed that the constitutional issue to be decided in the case was whether the school board wanted to teach religion, and that the test to be used was provided by the US Supreme Court in Lemon v. Kurtzman. That’s exactly what the judge did in his opinion. However, following a Supreme Court precedent isn’t good enough for Sarah. She says:
But what constitutes going outside of judicial authority? Judicial activism is defined byBlack’s Law Dictionary, seventh edition, as “A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”
[*Begin Drool Mode*] Ooooooooooooh — a dictionary! [*End Drool Mode*] Let’s read on:
Jones’s ruling meets this definition of judicial activism. First, there was no need to determine whether or not ID is science.
BWAHAHAHAHAHA! Of course there was. If intelligent design is science, then it’s acceptable to teach it in public schools. That’s exactly what the school board was claiming. Sarah continues with a big quote from Casey about the Lemon case. Some of it is worth repeating:
[The Lemon test is] the main judicial test used by courts in determining whether a government policy satisfies the Establishment Clause. It’s a three-part test, and each part (or “prong”) must be passed successfully if a government policy is to be constitutional.
Here are the three prongs, slightly paraphrased:
• Prong 1 (the “purpose” prong): The policy must have a secular legislative purpose.
• Prong 2 (the “effect” prong): The principal or primary effect of a policy must neither advance nor inhibit religion.
• Prong 3 (the “entanglement” prong): The policy must not foster excessive government entanglement with religion.
That sounds right. Let’s find out what Sarah does with it:
According to court precedent, Jones only had to determine if the Dover school board’s policy met the first prong of the Lemon test — that is, did the policy have a secular purpose? As the Edwards v. Aguillard ruling stated:
[Sarah’s quote:] If the law was enacted for the purpose of endorsing religion, no consideration of the second or third criteria [of Lemon] is necessary.
Yes, flunking one prong of the Lemon test is enough to invalidate a government action. But watch how Sarah handles that:
If so, an Establishment clause violation had occurred, the policy was unconstitutional, and no further legal analysis would be necessary or appropriate. In his ruling, Judge Jones found a predominantly religious purpose for the policy — and went on to rule on numerous other issues. … If Judge Jones had followed precedent, he would not have included an analysis of whether ID is science.
BWAHAHAHAHAHA! It’s apparent that Sarah has no legal training — unless she attended the Seventh Planet School of Law. That’s where they teach the rule that says: “When a judge finds one reason to support his decision, he must stop! If he gives more than one reason, his opinion is worthless!”
It’s also apparent that Sarah didn’t even read the Kitzmiller opinion. Had she done so — you can see it here — it’s readily apparent that Judge Jones made an exhaustive review of the precedents, some of which struck down teaching “creation science,” and he followed them scrupulously. On page 132 of the opinion, he said:
Although Defendants’ actions have failed to pass constitutional muster under the endorsement [of religion] test and pursuant to the purpose prong of Lemon, thus making further inquiry unnecessary, we will briefly address the final Lemon prong relevant to our inquiry, which is effect, in the interest of completeness.
Nothing wrong with completeness. In the event that an appellate court had overturned Jones’ finding on one prong, it made good sense to find that the school board also violated another prong — or some other rule of law. Hey — he also found that the school board’s policy violated the Pennsylvania Constitution. Does Sarah think he shouldn’t have considered that?
Second, a ruling on the nature of science is outside the realm of judicial authority. [Big quote from somebody who isn’t a judge.] Federal judges are to decide constitutional questions. Deciding what is and is not science is a matter for philosophers of science.
Really? Judge Jones cited numerous cases, including the US Supreme Court’s Edwards v. Aguillard, invalidating the teaching of “creation science” and “scientific creationism” on the grounds that they weren’t science, just religion. If a judge couldn’t examine such issues, then any flaming creationist fool could label his beliefs as “science” and float gently by the courts into the public schools. Indeed, that’s what the Discoveroids have been trying to do.
Moving along, Sarah gives us this gem:
Along these same lines, Judge Jones found that ID is not science because it supposedly “failed to gain acceptance in the scientific community.” Not only is this false — there are highly credible scientists who support ID — it is also irrelevant to whether ID is science. The history of science is littered with scientific theories that have been rejected by most scientists. Philosophers of science would generally agree that whether something is “science” is not determined by its level of acceptance in the scientific community.
BWAHAHAHAHAHA! There are “highly credible scientists who support ID”? Sarah doesn’t name any, and for good reason. Anyone who rejects evolution and supports intelligent design is by definition not credible. More than a century ago, it might have been different, but not now. Another excerpt:
But the big danger of his endorsement of the “general acceptance” test is that it threatens to hinder the advancement of science. … If his view of science ruled, then any scientific revolution would be blocked. New scientific theories, almost by definition, start with a low level of acceptance in the scientific community.
BWAHAHAHAHAHA! The judge didn’t rely solely on “general acceptance.” He went into the substance of intelligent design in depth. There is no substance — it’s nothing but Oogity Boogity! That’s why credible scientists reject it.
Sarah babbles on and on. We’ll skip to the end:
Not only did Jones eschew judicial economy, he attempted to act as a policymaker and wandered into the relationship between science and religion. If this is not a textbook case of “judicial activism,” the opposite of a judge staying within the boundaries of his proper authority, then the phrase has no meaning at all.
So there you are. Forget about Kitzmiller. The judge was a clown. That’s what Sarah says.
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