Dover players prepare for Supreme Court [Penna evolution trial]

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.

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."

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.

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.

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)."

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.

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."

A news article today, about the trial: Witness dissects district's words. In its entirety:

HARRISBURG — To the mind of 15-year-old biology students, a scientific theory would be equivalent to one of Fox Mulder's harebrained ideas posited each week on "The X-Files."

And, because they can't question their teachers about it, intelligent design might be viewed as a "secret science," only to be discussed with the Dover Area School District's top-level administrators.

"It's absurd," Brian Alters, a science education expert, said Wednesday. "To bring up alternatives to the cornerstone of modern biology and then don't answer any questions?"

In testimony Wednesday, Alters, an associate professor at McGill University in Montreal, picked apart the four-paragraph statement read to Dover Area High School biology students each semester before they begin studying evolutionary theory.

The statement, which calls intelligent design an explanation that differs from "Darwin's view," is at the heart of the First Amendment battle being waged in U.S. Middle District Court.

Lawyers for the 11 parents suing the school district tried to prove with Alters' testimony that intelligent design is theology and not science; and that it's detrimental to students' education.

Under what is known as the "Lemon test" of the First Amendment's establishment clause, the U.S. Supreme Court requires that a law must have been adopted with a secular purpose.

But Alters said no such purpose exist in the statement. "Not only is it not good science education," Alters testified, "but it detracts from it."

In addition to the statement, students are told that their teachers will not answer any questions about intelligent design and if they, or their parents, have any questions they should contact Supt. Richard Nilsen, Asst. Supt. Michael Baksa or Joel Riedel, the high school principal.

Alters said the result is that students come away with the idea that intelligent design — which argues life is so complex it must have been designed — is a special secret not to be questioned in science class.

"Does it promote critical thinking?" Alters asked. "It stifles critical thinking."

Nilsen said later that no students had contacted him about the statement.

As Alters testified in an animated voice, he went through the statement line by line, describing in detail his objections to the wording.

" 'The Theory is not a fact'? That's just dead wrong. It's a theory and a fact."

It's a theory because it's a well-tested explanation that unites a broad range of ideas, he said, but it is also fact because it is so widely accepted in the scientific community. But students could come away with the misconception that theory means merely a hunch.

As he continued, Alters said the statement singles out "gaps" in evolutionary theory, unlike, for instance, gaps in the theory of trajectory. The message conveyed to students is that evolution is to be mistrusted.

During cross-examination, Dover attorney Robert Muise raised differences in perceptions between evolution and other scientific theories.

He asked Alters about Oxford University's Richard Dawkins' statement that Darwin's theory made it possible to be "an intellectually fulfilled atheist."

"Are you aware that the trajectory theory has ever made anyone an intellectually fulfilled atheist?" Muise asked.

Alters smiled and said he was not.

Alters, who has also written a book about what happens when a student's religious beliefs conflict with the teaching of evolution in science class, said the typical 15-year-old brain has trouble grasping that there are "multiple ways of knowing."

He said students tend to see the world more in terms of true or false statements. And because intelligent design introduces religion into science, it creates an atmosphere where students might feel forced to defend their faith.

Alters pointed to a long list of scientific and education associations, including the American Association for the Advancement of Science, the National Academy of Sciences, and the National Association for Biology Teachers, that specifically denounce intelligent design in science class. He said he only knew of one education organization that endorses it, the American Association of Christian Schools.

[Omitted some background info at the end.]

Here's the Lemon case: LEMON v. KURTZMAN, 403 U.S. 602 (1971). A few small excerpts:

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." [citation omitted]
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. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [citations omitted], finally, the statute must not foster "an excessive government entanglement with religion."
[big snip]
Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. [citations omitted]. Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt property was in fact being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.
This is not to suggest, however, that we are to engage in a legalistic minuet in which precise rules and forms must govern. A true minuet is a matter of pure form and style, the observance of which is itself the substantive end. Here we examine the form of the relationship for the light that it casts on the substance.
In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority.
[big snip]
In Walz it was argued that a tax exemption for places of religious worship would prove to be the first step in an inevitable progression leading to the establishment of state churches and state religion. That claim could not stand up against more than 200 years of virtually universal practice imbedded in our colonial experience and continuing into the present.
The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches. Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that in constitutional adjudication some steps, which when taken were thought to approach "the verge," have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a "downhill thrust" easily set in motion but difficult to retard or stop. Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be recognized and reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the "verge" of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal.
Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor do we ignore their economic plight in a period of rising costs and expanding need. Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents.
The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.

BURGER, C. J., delivered the opinion of the Court, in which BLACK, DOUGLAS, HARLAN, STEWART, MARSHALL (as to Nos. 569 and 570), and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 625, in which BLACK, J., joined, and in which MARSHALL, J. (as to Nos. 569 and 570), joined, filing a separate statement, post, p. 642. BRENNAN, J., filed a concurring opinion, post, p. 642. WHITE, J., filed an opinion concurring in the judgment in No. 89 and dissenting in Nos. 569 and 570, post, p. 661. MARSHALL, J., took no part in the consideration or decision of No. 89.

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