Dover players prepare for Supreme Court [Penna evolution trial]

The York Dispatch ^ | 10 October 2005 | CHRISTINA KAUFFMAN

[PatrickHenry]

New justices would be pivotal if intelligent design case makes its way to the top.

The attorneys who are fighting to keep intelligent design out of public school science classes say it's doubtful Dover's case will make it to the U.S. Supreme Court. But school district attorney Richard Thompson is already preparing the case for the nation's highest court.

The school district hasn't yet begun to present its case in the U.S. Middle District trial, but Thompson said he's counting on the Supreme Court's new lineup to be beneficial to his case if it makes it there.

If the verdict in the current case is appealed, it would be sent to the U.S. Court of Appeals for the Third Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.

If either side is unhappy with the Court of Appeals' determination, it could petition the Supreme Court to hear the case.

Witold Walczak, legal director for the state's branch of the American Civil Liberties Union, said he thinks "it's far from a sure bet that the Supreme Court would hear this case.

"I certainly don't think it's as definite as Dick Thompson seems to be saying."

Thompson has already said he plans to appeal to the nation's highest court if he loses. The ACLU and Americans United for Separation of Church and State have been less definite, but Walczak said it's "highly likely" that they, too, would push the issue to a higher court if they lose.

"You don't put as much time and resources in a case as we have put into this and stop halfway," he said.

But he is skeptical that the nation's highest court would take on the case. The Supreme Court generally doesn't hear a case until a number of courts have heard the issue and there are conflicting rulings in appeals court, he said.

Dover's is the first court case challenging intelligent design, and the court is also highly selective, he said.

According to the Supreme Court's Web site, more than 8,000 petitions are filed with the court each year, but only about 100 are taken on.

Richard Katskee, assistant legal director for Americans United for Separation of Church and State, said that if his side is victorious and it is ruled that intelligent design is creationism, the Supreme Court would not have any particular reason to take the case: The court has already ruled that creationism can't be taught in science classes.

Katskee said the court would be more likely to take the case if the school district wins the Third Circuit appeal.

Almost 20 years: Regardless, Thompson said he thinks the Supreme Court could be interested in taking the case because it has been almost 20 years since Edwards v. Aguillard. [By PH: Edwards v. Aguillard].

In the 1987 decision, the court ruled that teaching creation science was unconstitutional because it violated the First Amendment's establishment clause, which states the government can't make a law establishing religion.

The Edwards case was spurred by a Louisiana law that prohibited the teaching of evolution unless accompanied by creation science.

At the time, Chief Justice William Rehnquist and Justice Antonin Scalia dissented from the other seven justices, saying they didn't agree with the "purpose" or "motivation" part of the Lemon Test, a three-prong test used to determine if a government action is unconstitutional.

Under the Lemon Test, an action is considered unconstitutional if those who created it had religious motivations, or no secular purpose.

In Scalia's opinion in the Edwards trial, he took issue with the prong dealing with motivation, saying it is "almost always an impossible task" to determine a legislator's "subjective motivation."

Thompson said it would be "like opening a Pandora's Box."

Lemon Test: Dover's intelligent design statement is being weighed against the Lemon Test to see if it violates the establishment clause, and Thompson said the case "would be an appropriate vehicle for Scalia and others to revisit whether motives ... should be taken into consideration."

But while Scalia argued that there was no definitive testimony in the Edwards case that suggested religious motivations, several of the plaintiffs' witnesses in the Dover case have said they heard at least two school board members making religious comments, even referencing the crucifixion of Christ.

York's two newspapers also reported those comments while covering the meetings.

But during cross-examination in the Dover case, Thompson has been trying to establish that, as Scalia wrote of the Louisiana legislature in his opinion, one or two members don't make up the whole school board.

Scalia wrote in 1987 that, "If a senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent?"

Thompson said he has already been gathering testimony in this case to establish that if one or two members had religious motivations, they don't represent the entire board.

"Board members can't tell a member of board ... not to speak," Thompson said.

Similarities to earlier case: There are several similarities between the Edwards case, in which the courts examined creation science, and the Dover case, in which the court is examining intelligent design.

In both cases, the defendants said they were seeking academic freedom, that the "creator" referred to is not necessarily the Christian God, that origins of life are not taught, that the teaching (of creation science in Edwards and intelligent design in Dover) is not mandated and that evolution should be "balanced" with an opposing theory.

Both the Louisiana legislators and members of Dover's school board have been shunned by most educators and scientists. Scalia said in 1987 that Edwards was like "Scopes in reverse," an analogy Thompson has used for Dover's dilemma.

The 1925 Scopes trial was held in Tennessee after science teacher John Scopes was accused of teaching evolution.

Thompson said the parallels he has been drawing to the Edwards case -- and Scalia's opinion -- aren't accidental.

He said he has headed in that direction "whenever relevant," in order to make a record "so an appellant court, when looking at it, will have a full flavor for what happened here."

"I think both sides are doing that (making their case relevant for the Supreme Court)."

Two left from Edwards: The Supreme Court consists of nine justices.

Scalia and Associate Justice John Paul Stevens, who voted against Scalia's opinion in the Edwards' case, are the only two justices remaining from the 1987 case.

Rehnquist, the only justice to go along with Scalia's opinion in the Edwards case, died of complications from thyroid cancer Sept. 3.

In the current court, Scalia and Associate Justice Clarence Thomas are generally considered conservative. Stevens and justices Stephen Breyer, David Souter and Ruth Bader Ginsburg are considered liberal.

Ginsburg is a former ACLU attorney.

Anthony Kennedy is considered a moderate.

Roberts a question mark: Though he has not been on the bench long enough to determine his leanings, new Chief Justice John Roberts has been largely classified as between Scalia and Kennedy.

Thompson said Roberts' record shows he is against judicial activism, or overturning legislation enacted by local and state governments, such as a school board.

Both the ACLU and AU have issued positions on Roberts, saying his record on First Amendment issues raises concerns about his commitment to upholding the separation of church and state.

"While serving as the politically appointed principal deputy solicitor general from 1989 to 1993, Roberts authorized briefs calling for Roe v. Wade to be overruled, supporting school prayer, and seeking to criminalize flag burning as a form of political protest," the ACLU's statement said.

Last week, President George W. Bush nominated Harriet Miers to fill the position left vacant by the retirement of associate justice Sandra Day O'Connor.

The moderate conservative O'Connor often cast the deciding vote in 5-4 decisions dealing with controversial issues.

She gave the court the majority it needed to affirm Roe v. Wade, which legalized abortions and, in 1992's Lee v. Weisman, she cast the deciding vote that prohibited government-sponsored prayer at graduations and other public school events.

Thompson praises changes: While Miers' opinions are largely unknown, Thompson said the changes could benefit Dover.

"I think there are more conservatives, the court is going to be moving in a more conservative direction," he said. "Conservatives are more likely to allow legislative policies to stand even though those policies may have religious implications."

"This court may spark the move away from the Lemon Test into a more concrete test that will address the idea of coercion ... (whether or not a government measure) is coercing students to accept religion or not."

Katskee said the Supreme Court has historically been "most protective" of the line between church and state as it pertains to children.

But in recent years, there have been alternative views offered from the "religious right," Katskee said.

"It's a minority position, but it is becoming a powerful position in the judiciary."

Regardless, it is the justices' job to distinguish whether something is constitutional, not whether it coincides with their own policy views, he said.

Katskee said the Dover case has national implications and he hopes, should the case arrive at its feet, that the Supreme Court will continue to protect the separation of church and state.

"Citizens, school board members and legislators across the country are watching this case," he said. "The result of the case will provide a strong signal to people across the country whether intelligent design creationism can be put into the science classroom or not."

Katskee said a victory for the parents would "put the brakes on the intelligent design movement," and a win for the school district would give "the green light" to the "newest mechanism for working religion into schools."

[PatrickHenry]

This is a break from the typical round of daily threads on this trial. Here is an article that examines the likely outcome in the Supreme Court.

Still, to keep the number of threads down, it's best to post daily trial news in this one thread.

[PatrickHenry]

EvolutionPing

A pro-evolution science list with over 310 names. See the list's explanation at my freeper homepage. Then FReepmail to be added or dropped. See what's new in The List-O-Links.

[PatrickHenry]

Here's a link to a website that has readable trial transcripts (converted to browser-useable HTML): Kitzmiller v. Dover Area School District.

[Vaquero]

Roberts being RC has no problem separating science from religion. I see this as not an issue for the continuation of the teahing of evolution as the only (and rightly so) scientific explanation of where the human race came from.

[PatrickHenry]

Some of the litigation links from The List-O-Links:

Eight Significant Court Decisions.
The Evolution Controversy. Scopes trial and some Supreme Court cases.
Freiler v Tangipahoa Parish Board of Education. Louisiana school's evolution disclaimer decision.
Tangipahoa Parish Board of Education v. Freiler. US Sup Ct denied certiorari, Rehnquist, Scalia & Thomas dissenting.
Selman v. Cobb County School District. The Georgia textbook sticker case. Uses Lemon test.

[PatrickHenry]

As to how Bush's new nominee might vote, no one knows, of course, but here's a hint:

It's been reported by the Panda’s Thumb that at the “Useful Links” page for Miers’s Valley View Christian Church links prominently to the Creation Evidence Museum, run by Dr. Carl Baugh, a creationist.

Here's the church's links. Creation museum is at the bottom.

[AntiGuv]

The last statement that I recall with regard to evolution by the church that I'm a member of (yes! amazing as that may seem..) was titled: "Darwin on the Road to Hitler."

This has no relevance whatsoever to Miers, who is by every account devoted to her faith. It just struck me as amusing what kind of conclusion some enterprising investigator might think he'd reached about me if he delved..

[Chiapet]

Thank you for the transcript link!

[SmoothTalker]

""Darwin on the Road to Hitler." "

You can't deny that every racist type in the early part of this century jumped all over Darwinism and used it to support their ideas that certain races were better. Nazism was merely a logical extension of the doctrine of natural selection.

[ml1954]

Because the Discovery Institute almost certainly doesn't, I'd almost like to see the case of the 'unusually clueless champions' of ID vs Science go to the Supreme Court.

[Dimensio]

Nazism was merely a logical extension of the doctrine of natural selection.

There are only two kinds of people who make this assertion: those who do not understand natural selection and those who are lying about what natural selection implies. Which are you? Note that if you are going to dispute the initial premise in an attempt to dispel my dichotomy, you should try and show an actual logical connection between natural selection and Nazism.

[SmoothTalker]

Do you not deny that social darwinism was an appropriation of Darwinism and that all kinds of bigots in the first part of this last century used the theories to explain why certain races were more backwards than others?

[Dimensio]

Do you not deny that social darwinism was an appropriation of Darwinism and that all kinds of bigots in the first part of this last century used the theories to explain why certain races were more backwards than others?

No, but I do deny that "social darwinism" is a logical extension of natural selection. As I said, anyone who tries to claim a logical connection between natural selection and Nazisim is either ignorant or lying.

[Junior]

The CrevoSci Archive Just one of the many services of Darwin Central "The Conspiracy that Cares"

• PatrickHenry's famous List-O-Links

CrevoSci threads for the past week:

1. 2005-10-13 Dover players prepare for Supreme Court [Penna evolution trial]
2. 2005-10-12 Camden tool could be 5,000 years old
3. 2005-10-12 Can an Electron be in Two Places at the Same Time?
4. 2005-10-12 Challenge to Biological Evolution: Convergence
5. 2005-10-12 Dover science teacher testifies [Evolution trial, thread for 12 Oct]
6. 2005-10-12 Intelligent Design 101: Short on science, long on snake oil
7. 2005-10-12 Intelligent Design Debate Brews
8. 2005-10-12 Intelligent Design? [...in California schools]
9. 2005-10-12 NASA Discovers Life's Building Blocks Are Common In Space
10. 2005-10-11 Anthropologists Uncover Ancient Jawbone
11. 2005-10-11 Creationism Is Evolving... It Has No Choice
12. 2005-10-11 Dinosaur-Bird Flap Ruffles Feathers
13. 2005-10-11 Don’t settle for separate but equal (Dover trial Darwinists, are 'absurd' says YDR Editor)
14. 2005-10-11 More bones of hobbit-sized humans discovered
15. 2005-10-11 Warnings from the Ivory Towers
16. 2005-10-10 Backward, Christian Soldiers! (Intel-Design supporters equivalent to 'Holocaust Deniers')
17. 2005-10-10 Creationism concerns shadow Florida's new top educator
18. 2005-10-10 Did feathered dinosaurs exist?
19. 2005-10-10 EUGENICS - From Darwinism to Population Control
20. 2005-10-10 Intelligent design's big ambitions - Advocates want much more than textbooks.
21. 2005-10-10 Killer Findings: Scientists Piece Together 1918-Flu Virus
22. 2005-10-10 Latest Study: Scientists Say No Evidence Exists
23. 2005-10-09 Evolution of faith
24. 2005-10-09 Gov. Bush [Florida] oddly evasive on evolution
25. 2005-10-09 Putting Relativity To The Test, NASA's Gravity Probe B To Reveale If Einstein Was Right
26. 2005-10-08 Famed author takes on Kansas: Rushdie bemoans role of religion in public life
27. 2005-10-07 Descent of Man in Dover (Why acceptance of ID not inevitable.)
28. 2005-10-07 Discovery Institute's “Wedge Document” How Darwinist Paranoia Fueled an Urban Legend
29. 2005-10-07 Dover, PA Evolution Trial [daily thread for 07 Oct]
30. 2005-10-07 Evolution and intelligent design Life is a cup of tea
31. 2005-10-07 Let 'intelligent design' and science rumble
32. 2005-10-07 The Las Cruces Fossil Human Footprints
33. 2005-10-07 The Map that Changed the World [in 1815]
34. 2005-10-07 University of Idaho Bans All Alternatives to Evolution
35. 2005-10-07 Why Intelligent Design Is Going to Win

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CrevoSci Warrior Freepdays for the month of October:
 

2003-10-09 antiRepublicrat 2004-10-10 Antonello 1998-10-18 AZLiberty 1999-10-14 blam 2000-10-19 cogitator 2001-10-21 Coyoteman 2004-10-26 curiosity 1998-10-29 Dataman 2000-10-29 dila813 2005-10-07 Dinobot

2001-10-14 dread78645 1998-10-03 Elsie 1998-10-17 f.Christian 2002-10-08 FairOpinion 2001-10-26 Genesis defender 2000-10-09 Gil4 2000-10-08 guitarist 2004-10-10 joeclarke 1998-10-03 js1138 2001-10-24 k2blader

2000-10-08 LibWhacker 2002-10-25 m1-lightning 2001-10-10 Michael_Michaelangelo 2001-10-09 Mother Abigail 2004-10-25 MRMEAN 2004-10-03 Nicholas Conradin 1999-10-28 PatrickHenry 1998-10-01 Physicist 1998-10-25 plain talk

1998-10-12 Restorer 2005-10-04 ret_medic 2001-10-23 RightWingNilla 2004-10-09 snarks_when_bored 1998-10-04 Southack 2002-10-22 sumocide 2004-10-21 WildHorseCrash 2001-10-23 yankeedame 2002-10-20 Z in Oregon

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In Memoriam
Fallen CrevoSci Warriors:

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ALS Area Freeper Aric2000 Askel5 bluepistolero churchillbuff ConservababeJen DittoJed2 dob Ed Current

f.Christian followerofchrist general_re goodseedhomeschool gopwinsin04 gore3000 Jedigirl JesseShurun Kevin Curry kharaku

Le-Roy Marathon medved metacognative Modernman NoKinToMonkeys Ogmios peg the prophet Phaedrus Phoroneus

pickemuphere ret_medic RickyJ SeaLion Selkie Shubi Tomax tpaine WaveThatFlag xm177e2

Bring back Modernman and SeaLion!

[Junior]

You can't deny that prior to Darwin Christians used the "sons of Ham" excuse to enslave darker-skinned folks.

[Alamo-Girl]

Thanks for the ping!

I'm glad to see the attorneys are gearing up for appeals - because if either side fails to lay out the facts in support or defense of a theory to appeal while yet in trial, that side will lose (IMHO).

[js1138]

You can't deny that every racist type in the early part of this century jumped all over Darwinism and used it to support their ideas that certain races were better. Nazism was merely a logical extension of the doctrine of natural selection.

Nor can you deny that prior the the Civil War, Christians used the Bible to justify slavery.

So what?

[Doctor Stochastic]

Social Darwinism seems be the rationale of the Institute for Creation Research to be against capitalism.

[longshadow]

**** ..... the Creation Evidence Museum, run by Dr. Carl Baugh,.....*****

Doctor Baugh? That's an interesting characterization; especially after reading:

http://www.talkorigins.org/faqs/paluxy/degrees.html

where one will see that it would be more appropriate to characterize Baugh as a "charlatan" rather than a "doctor," being that his claim to the title "doctor" rests upon approximately the same foundation as do claims that "Captain Kangaroo" is naval officer or a marsupial.

[PatrickHenry]

At the start of the church's links page is this disclaimer: This is not a endorsement just some links we enjoy

Make of that what you will ...