Posted on 11/16/2005 2:38:35 PM PST by PatrickHenry
MR. GILLEN: All right. Good afternoon, Your Honor. I want to echo the sentiments of everyone who has appeared in these proceedings and thank you for your cordiality, your respect for the lawyers who appeared before you, and that of your staff. I would also compliment my opposing counsel and, of course, my colleagues.
That said, I'd like to address the argument of plaintiffs' counsel. And I think that for all the magnificent vista of science and religious liberty that he has discussed in detail, what is missing is due attention to the facts of this matter.
Because as I appear before you today, I am confident that upon a full deliberation and reflection on the evidence of record, not rhetoric, that, as I said at the beginning of these proceedings, you will find that the plaintiffs have failed to prove that the predominant purpose or primary effect of the curriculum change which was approved by the Dover Area School District on October 18, 2004, is to advance religion.
Quite the contrary, the evidence of record demonstrates that the curriculum change at issue here had, as its primary purpose and has as its primary effect, science education. It is true that it attracts attention to a new and fledgeling science movement. But look at Steve Fuller. See it through his eyes. See it through the eyes of history and watch how he can see what may be the next great paradigm shift in science, a wholly new vista that does service to the children of this district by allowing them to put together scientific fields in a new and exciting way which is ultimately productive of scientific progress.
Let's look at the facts of the matter as it relates to the conduct of these board members. Sheila Harkins does not fit the bill the plaintiffs would have her fit, a religiously motivated co-conspirator who has no interest in the welfare of the children of the district. Not at all. She voted against the text in 2004 because she was trying to save taxpayers money and knew that teachers weren't using the one they had. That's a simple, common sense reason.
She was for making students aware of other theories, including, but not limited to, intelligent design because she believed it would encourage critical thinking. As she said, when those students cross the stage at Dover, it's more important we told them, you know, how to think than what to think. And she thought this small and modest measure would contribute to that.
Jane Cleaver is the same. She has aneighth-grade education. She loved the kids in this district. She thought this was a good idea. She has no interest whatsoever in imposing creationism on the children of the district, and she did not. As she said, creationism is based on the Bible. That's for the church, that's for the family.
Heather Geesey cannot be cast as a religious co-conspirator. She went to Christian schools and her child -- was taught creationism as a child. She knew intelligent design was not creationism because it's not based on the Bible, which she grew up learning. She thought it was good education to make students aware of other scientific theories. She voted to delay the text purchase because she thought the board could reach consensus.
She took it for granted, quite rightly it turns out, that the text recommended by the faculty would be purchased. She did not vote in August to hold up the text indefinitely, she did not vote to make Of Pandas the basal text. She was voting for a supplemental text. Here again, her actions speak louder than words. Her whole point in sending her children to public school is to introduce them to those broader vistas that she did not experience as a child. And as she explained in her letter to the editor, her whole purpose was to make clear there that Dover does cooperate with parents by leaving religion to the family.
At the end of the day, Alan Bonsell cannot be regarded as a creationist bent on violating the law, either. While a board member since December of 2001, he has never initiated any change to the biology text curriculum or instruction. Bonsell's questions concerning the presentation of evolutionary theory derived from his personal reading cannot be disregarded out of hand as the tendentious assertions of one with a religious agenda.
He had legitimate questions, scientific questions, about the claims made for evolutionary theory, statistical probability of biological life developing through a random and undesigned process, the conclusory assertions which seem to underlie claims for change from one species to another.
For that matter, he knows that Jen [Ken?] Miller teaches speciation through the finches, and he has no objection. True, he is not a scientist, but what of it? Highly credentialed biologists, yes, in the minority, like all discoverers are, offered highly technical expert opinion substantiating the reservations that Bonsell had based upon his personal reading.
As for Bonsell's interest in creationism, this interest is not illegal and provides no grounds to void the actual policy at issue here. He understands creationism to be based upon a literal reading of the Bible, the Book of Genesis, and, yes, he does believe it.
When he met with the science faculty in the fall of 2003, he learned that faculty mentioned creationism but did not teach it because they believed it would be illegal. He left that meeting pleased because teachers mentioned creationism as an introductory matter but did not teach it. He regards this as a matter for church and family. And he was pleased to see that teachers did not tell the children creationism was wrong, for as the plaintiffs' expert Brian Alters has testified, that is not the place of the science faculty.
Yes, our nation does guarantee religious liberty, and Bonsell is entitled to it like everyone else. He can express his interest so long as he acts within the law, and he has done so here.
More importantly, neither Bonsell nor the board can be penalized for interest because the law prescribes improper purpose, not interest. Bonsell had an interest in creationism, but the evidence shows he never took any action to require the teaching of creationism in Dover.
Quite the contrary, the net result of the curriculum policy challenged in this litigation has been to absolutely prohibit the teaching of creationism. Indeed, the record shows that interest and action are two very different things, and it's an important distinction, Your Honor.
Bonsell had an interest in how Dover School has treated prayer -- students have a constitutional right to pray if they want -- but he never took action requiring prayer in schools.
Bonsell had an interest in the social studies curriculum. In 2002, he gave Mike Baksa a book advancing a wholly legitimate historical and legal analysis that has endured for 65 years concerning the separation of church and state and what it means, a line of argument advanced by no less than the late Chief Justice of the United States Supreme Court, William Rehnquist, a line of argument that has generated thousands of books and law review articles.
More importantly, Your Honor, here we are in November of 2005, and he has never taken any action to change the social studies curriculum. Interest and action are two very different things.
More fundamentally, in the areas at the very heart of this case, Bonsell's actions show that he did not let his religious convictions affect his service to the students of this district. When Bill Buckingham tried to hold up the purchase of the biology text recommended by the science teachers in August of 2004, Bonsell voted against Buckingham's motion because he believed the students should have the text recommended by the science faculty regardless of whether Of Pandas was approved.
And on the night of the board policy approved here, Bonsell added a note which ensured that intelligent design was not taught in biology class as desired by the science faculty. Bonsell's motion was seconded by Jeff Brown, who opposed the curriculum change, but also shared Bonsell's goal of ensuring that intelligent design was not taught at present.
And it was approved unanimously by the board, including members who opposed the curriculum change, because it was understood to have the effect Alan intended, to prohibit the teaching of intelligent design right now.
Finally, any implication that Bonsell acted to influence the curriculum to shield his daughter from evolutionary theory or tailor the curriculum to his religious beliefs is wholly untenable. His daughter is in biology class. She will learn evolutionary theory as required by state standards, and he will not have his daughter opt out. Alan Bonsell is not afraid of the truth. He is afraid of something that we have seen here, science taught as dogma.
Angie Yingling is another member of the board who voted for the curriculum change at issue here. The whole notion that the text selection process or curriculum change were rigged to secure a religious end is wholly undermined by her role.
In August of 2004, she initially voted with Buckingham to link approval of the basal text with the supplemental text Of Pandas. Although she did so, she changed her vote in response to the reaction of the crowd, not because she had some sudden revelation that her action was illegal, but because she was responding to her constituents.
In any event, we can tell that by the way she voted on October 18th, in favor of the curriculum change. There is no evidence in this case that she ever did anything for a religious purpose.
Even Bill Buckingham, for all the statements attributed to him, cannot defy the great weight of the evidence in this case which has been ignored by the plaintiffs. Based upon his personal reading, he believed the biology text made claims for evolutionary theory far in advance of what had been demonstrated by science. He wanted students to be aware of intelligent design theory, a scientific theory he believed to be supported by numerous scientists.
In June of 2004, biology teachers reviewed the materials he received from Discovery Institute. Yesterday you heard Bob Linker. He was glad to review the tape, a sign of his intellectual integrity, curiosity. He thought it was beneficial to receive information about gaps and problems with evolutionary theory, the same sort of information that these board members wanted children to have.
Maybe that would excite them, either to fill those gaps and problems or think this is a deficient theory, we need another. Certainly that's what Mike Behe thinks. That's what Dr. Scott Minnich thinks. That also is a step to scientific progress. And, in fact, at every stage in the history of science, as recounted by Steve Fuller, is the dissatisfaction with the cumulating problems which have been testified to in this court which has become the spur for scientific advance. It's not just all fall in line and work by the guidelines established in a dominant theory.
Again, Buckingham's concerns with evolutionary theory cannot be discounted out of hand. Yesterday you heard Mike Baksa, an impartial administrator with no ax to grind against evolutionary theory. Baksa's review in comparison of the 2002 and 2004 editions of Miller and Levine conducted with the science teachers tended to accredit Buckingham's concerns, for the changes to the 2004 edition of Miller and Levine implicitly legitimized many of Buckingham's complaints that the text was overstating achievements for evolutionary theory.
It is true that Buckingham wanted approval of the basal text recommended by the teachers to be linked to approval of the supplemental text Of Pandas. That's true. But he never intended to block approval of the basal text. He wanted the students to have two books, not one.
In a similar way, the plaintiffs cannot prove that the board was bent on a religious purpose, ramroding a curriculum change through, heedless to the science faculty or community, given the evidence of the actual process which produced the curriculum change. The starting point here must be the actual context for the development of the policy.
On the day of the board administrative retreat on March 26th, 2003, the very day that Alan Bonsell mentioned creationism, Mike Baksa attended a seminar on creationism and the law sponsored by the Pennsylvania School Board Association. The presenter had a law degree from Harvard and had authored the Equal Access Act, a provision that guarantees religious liberty. The facilitator had a Ph.D. in the history of science.
Mike Baksa had been sent to the seminar by Rich Nilsen, who knew that the science text and curriculum were up for review and that knowledge of the law in this area was important. At that seminar, Mike Baksa learned two things which informed his part in this policy-making process. He learned that creationism could not be taught, but also that the discussion of creationism might add to the fullness of the presentation of evolutionary theory, place it in context. We're not talking about a religious doctrine here now. It's a scientific doctrine as testified to by the defendants' experts.
Five days later, after attending this seminar, Baksa received a memo from Trudy Peterman, the principal of Dover High School, indicating that teachers did discuss creationism as another theory of evolution. Mike knew that the memo was inaccurate, but the more significant point is through the Peterman memo and subsequent discussions with teachers such as Bob Linker, Mike learned that the practice of the teachers seemed to reflect the very sort of idea he had heard described at the seminar, one described as conducive to good science education, one, which it can easily be seen, would reduce resistence to scientific theory and progress by students with religious convictions.
Taking Bert Spahr's assumption that Bonsell was talking about creationism, as a starting point, Mike Baksa thought he might be able to respond to Bonsell's interest by including a mention of creationism in the curriculum, but at no point did Mike entertain an illegal objective.
To see him testify, unvarnished and matter of fact, yielding points to both sides as required by honesty, is to see the very administrator who stood at the center of this process and that he facilitated no agenda he believed to be illegal.
And Mike Baksa was not the sole source of input into the board's deliberation. While the plaintiffs have alleged that neither the science faculty nor the community advisory committee were consulted with respect to the curriculum change, the evidence shows that both the faculty and the community advisory committee were consulted.
Rich Nilsen ensured that the community advisory committee was given an opportunity to provide feedback despite the objections of Bill Buckingham, because Nilsen valued the input, and he knew, as have many in this process, that Bill Buckingham was not the board.
The teachers were also consulted. The critical benchmark here is the recognition that Buckingham sought to secure balance by tying approval of the two texts together. He lost that vote. The same is true with respect to Buckingham's effort to ensure that the supplemental text Of Pandas was given to students in the classroom. He lost that vote. Teachers agreed to its use as a reference text, ultimately was placed in the library.
Teachers were also consulted with respect to Buckingham's effort to secure the teaching of intelligent design theory. Members of the board curriculum committee and the science faculty met throughout the summer of 2004. Science teachers reviewed materials regarding intelligent design provided by Discovery Institute and agreed that evolutionary theory, like any theory, had gaps and problems.
Teachers agreed to make students aware of gaps. The basal text mentioned strengths and weaknesses of evolutionary theory because it is good science education, on that consensus became part of the curriculum change.
Here, Your Honor, you must notice that any argument to the effect that the teachers were coerced into making these concessions is belied by their own words and actions. They have adamantly refused to implement the curriculum change at issue here.
Finally, the plaintiffs cannot prove an improper religious purpose given the board's consultation with teachers regarding implementation of the curriculum change. The board agreed to a statement designed to address teacher concerns with respect to that implementation.
You heard Jen Miller, the senior biology teacher at Dover. In a meeting with administrators, she demanded to be told exactly what they were to say to students about intelligent design, exactly how to answer questions from students.
Faced with a request plainly impossible to satisfy, Mike and the board fell back on the idea that Bert Spahr had given him when the curriculum change was discussed in the spring and summer of 2004, an informational statement.
In sum, teachers were also consulted extensively in connection with the curriculum change, and their final result reflects, in very large measure, their input. In fact, the final result has much more to do with the teachers' input than Bill Buckingham's.
As you decide this case, I ask you to consider this, Judge: On the one hand, the teachers resisted implementation of the curriculum change on the grounds that they were not educated in or trained to teach intelligent design, but somehow they felt qualified to opine that it was not science. What sense does that make if you're sitting on the board?
Surely the board was well within its rights when it decided to resolve any doubts in favor of the likes of Mike Behe, who does have a Ph.D. and is doing work in the sciences but doesn't use intelligent design because papers that use that term can't be published.
There may well have been an honest disagreement between the board and faculty, but the law on this point is clear. The board has the final say in such cases.
It speaks volumes that the actual result of the deliberative process is so far removed from Buckingham's objectives as chair of the board curriculum committee. And this, in turn, shows that the plaintiffs' efforts to portray the board as a faction bent on a religious mission cannot withstand close scrutiny.
In addition, the plaintiffs' effort to establish a religious purpose based on isolated comments with a religious thrust must be rejected. Carol Brown's testimony, histrionic, even if believed, provides no basis for such a claim. Can it really be claimed with any sort of integrity that comments made by two board members, friends by their own admission, who dared to mention religion on two separate occasions, are evidence of a religious purpose?
Both denied, because of memory, perhaps, but both innocuous. One comment invited by Casey Brown when she visited with her friend Jane Cleaver and remarked in a religious display. The other when Bill Buckingham, in a display of charity, drove her home from a meeting.
And what weight do Casey Brown's objections and complaints deserve when she's asking Sheila Harkins about Quakerism, her religious convictions, and what she believes? What weight to Jeff Brown's objections when he's voting on board resolutions because he's got a message from on high?
To hear the testimony presented to the Court in this area is to realize that religious liberty cuts both ways, and it would be absurd to penalize board actions based on a few isolated comments with a religious thrust.
In any event, as you well know, the plaintiffs cannot show that the defendants had a religious purpose based on statements made by individuals. What matters here is the action of the public body as a whole determined first and foremost by the actual language of the policy that is at issue and its actual effect.
The purpose of a public body, likewise, cannot be proven by the evidence of the motives or purposes of third parties, whether scientists, academics, editors, authors, or publishers, because, again, the purpose of public bodies must be determined with reference to the collective purpose of the public body.
Therefore, as you make your findings in this case, Judge, you must be mindful of something that is very clear and was stated throughout this case. Bill Buckingham is not the board, as Jeff Brown, Alan Bonsell, Sheila Harkins, Mike Baksa, and Rich Nilsen all took pains to point out at various points in this process we have scrutinized.
Likewise, the documents in 2002 and 2003 do not satisfy the plaintiffs' burden of proof, because, again, actions speak louder than words. It is simply not the law that the mere mention of the word "creationism" is illegal in these United States. Certainly Dover's principal and biology teachers didn't think so, for they mentioned creationism in their introduction to evolutionary theory.
The whole net result of this policy is to replace that introductory mention of creationism with an introductory mention of intelligent design. There is simply no meaningful way in which this outcome can be said to advance religion in any way given the nature of the statement at issue in this case, something Bob Linker acknowledged yesterday when he asserted his honest, objective, and wholly reasonable belief that mentioning creationism is not teaching it.
Now, it is true that the board did not agree with all the assertions and recommendations of the science faculty or the administration, for that matter, but, of course, it's the board's right and duty to exercise its judgment when adopting measures designed to serve the citizens of Dover. After all, consultation designed to help the board perform its functions does not mean capitulation to the science faculty.
Quite the contrary, the board's decision is entitled to great deference precisely because the board is elected by citizens who entrust the board with public responsibility, and it's those citizens who have the ultimate say.
It is these plain facts of the matter which explain why the plaintiffs have been forced so far afield in order to advance their claims, offering evidence with no meaningful connection to this case.
Although the plaintiffs have focused a great deal of attention on Discovery's Wedge strategy, there is no evidence that the defendants had ever seen this so-called Wedge document or discussed the so-called Wedge strategy with anyone at any time before they learned about it in the plaintiffs' complaint.
Although the plaintiffs focus on Phillip Johnson, there is no evidence at all that the defendants know the man. Although the plaintiffs focus on the Foundation for Thought and Ethics, statements made by Jon Buell, there is no evidence that the defendants ever spoke to him or knew anything about the origins, purpose, or mission of FTE.
Although the plaintiffs have focused on prior drafts of the text Of Pandas and the motives or statements of its authors or editors, there is no evidence that the defendants had any knowledge of or interest in these statements or, for that matter, the motives, purposes, or metaphysical commitments of these strangers.
And that is why the main support for the plaintiffs' claim is a mountain of press clippings built on a molehill of statements allegedly made by one board member who, troubled and wrestling with the addiction of Oxycontin, occasionally allowed people to put words in his mouth.
The real purpose at issue here is the purpose that underlies the four-paragraph statement that mentions intelligent design twice, that does not even describe the hypothesis advanced by intelligent design theorists, but simply informs students that it's an explanation for the origins of life different from evolutionary theory and tells students that there are books on the subject in the library.
This modest result, so far removed from what various board members contemplated at different times, shows that the plaintiffs have failed to prove, as they must prove to prevail, that the actual primary purpose of the actual policy at issue here is a religious purpose.
The evidence has also demonstrated that the plaintiffs have failed to show that the primary effect of the curriculum change is to advance religion. As an initial matter, the primary effect of a curriculum policy is the effect it has on instruction in the class.
As you will see in our briefing, the Supreme Court has never applied the endorsement test when assessing the primary effect of a curriculum policy. It focuses on the student in the classroom, and that makes perfect sense.
It is likewise clear that the primary effect of a curriculum change is not the secondary collateral and indirect effect of newspaper articles written by reporters. The effects of newspaper articles are just that, the effect of the words and deeds of third parties, third parties not authorized to speak for the defendants, not under their control, and therefore third parties for whose acts the defendants cannot in justice be held responsible.
Indeed, the primary effect of the board's curriculum change is not even the district's press release or newsletter, for these were secondary and collateral consequences, by no means an integral or intended consequence of the curriculum change when it was passed on October 18th, 2004, but simply the wholly legitimate efforts of a public body to address misinformation and questions on the part of the public.
Plaintiffs have failed to prove that the actual primary effect of the defendants' policy is to advance religion. Your Honor, a four-paragraph statement, an informational statement which does not detail the claims of intelligent design, may serve to prompt the curiosity of students, may lead them to the library, but it does not advance religion.
Apart from this four-paragraph statement lasting about one minute, science teachers teach evolutionary theory as required by state standards. They use the basal text recommended by the science faculty, a text recommended by the plaintiffs' expert. In this way, the evidence shows that while the students are taught evolutionary theory in the class, they are merely made aware of intelligent design theory through a one-minute statement.
And while students are assigned the basal text authored by the plaintiffs' expert, they are merely made aware that there is a reference text in the library dealing with intelligent design, as well as other books on the subject. And students are made aware that they will be tested on evolutionary theory.
Further, the evidence has shown that to allay any concerns on the parts of parents or faculty, Rich Nilsen put in place guidelines to make sure that intelligent design theory would not be taught at present, it can't be under the policy, it is a fledgeling scientific theory, that teachers would not teach creationism, the religious beliefs of Bonsell and Buckingham, that teachers wouldn't teach their own religious beliefs, either.
Indeed, the plaintiffs have not proven that the primary effect of the curriculum change is any significant change in science education at Dover. The note designed to allay the faculty's fears that they would be required to teach intelligent design was not intended to and did not, in fact, cause any change in the presentation of material.
As the teachers have uniformly stated, they never taught the origins of life. And there is no evidence whatsoever that whatever changes teachers may put in place or may have already, that those changes were authorized or required by the board. Those were changes put in place by the teachers in the exercise of their discretion and changes for which the board cannot be held liable.
In many respects, the most interesting result of this policy change is the addition of books to the collection of the high school library. Two donations by two different groups of individuals, both readily accepted by the board and administration without questioning the identity or motives of the donors.
How can adding books to the library be a bad thing? It is not. And for this reason, when all is said and done, the circumstances surrounding the donation volunteered by a father trying to protect his son from what he saw as politically motivated attacks, must not be allowed to undermine the legitimate educational benefit those books confer.
In this regard, Your Honor, it must be remembered that as the matter now stands, the text Of Pandas is counterbalanced by three texts critical of intelligent design authored by the plaintiffs' experts. Indeed, if a student goes to the Dover High School library and inputs "intelligent design" into the catalog, he'll be directed to one book, a book written by plaintiffs' expert, Robert Pennock, that is critical of intelligent design.
Such results are not consistent with an effort to advance a religious agenda, but such results are quite consistent with the board's actual primary purpose here, that is, good science education.
The plaintiffs have failed to prove that the primary effect of Dover's curriculum change is to advance religion for another reason. The evidence shows that intelligent design is science, a theory advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion.
The evidence has failed to support the claim that intelligent design is a nonscientific argument that is inherently religious. The testimony and evidence offered by Behe and Dr. Scott Minnich proved that IDT is science.
It's true to say that they are confronting some of the sociological dimensions of scientific progress, dimensions that Steve Fuller and others have studied. That doesn't mean they're wrong. Only time will tell.
Although the plaintiffs have objected to the defendants' observation that evolutionary theory has gaps, the evidence has shown and the plaintiffs' experts have conceded that evolutionary theory does have gaps. Indeed, it has problems. The evidence also shows that the theory of evolution is just that, a theory, not a fact, something that the plaintiffs' experts have conceded.
Moreover, to hear Steve Fuller testify, Your Honor, is to see that IDT's openness to the possibility of causation, which some might classify as supernatural, at least in light of current knowledge, does not place intelligent design theory beyond the bounds of science.
Quite the contrary, intelligent design theory's refusal to rule out this possibility represents the essence of scientific inquiry, precisely because the hypothesis is advanced by means of reasoned argument, based not on the Bible, but on empirical evidence and existing knowledge.
| As Fuller has explained, it is merely a philosophical commitment to so-called methodological naturalism, adopted as a convention by the bulk of the scientific community, which bars reference to the possibility of supernatural causation, again, at least so far as such causation is currently regarded as supernatural. Even Pennock agrees that philosophers of science, those who have examined these matters in detail, do not agree as to the viability or benefits of this so-called methodological commitment. |
Moreover, the evidence shows that this philosophical, nonscientific commitment is in no way an essential feature of scientific inquiry. One should be reluctant, truly loathed to impose as a matter of federal law a current convention of the scientific community when the consequences would be to greatly harm scientific progress, at least if the history of science can shed any light on its future. But that would be the practical effect of accepting the artificially narrow view of science espoused by the plaintiffs' experts.
This Procrustean effort to confine science within bounds set by nothing greater than present-day convention displays a deplorable lack of historical perspective and philosophical sophistication. Such a view of science is not science, it is bad philosophy of science.
This Court must eschew the plaintiffs' invitation to declare the laws of science from the bench if only because history demonstrates that all such efforts are doomed to failure. In this regard, the plaintiffs cannot hope to meet their burden of proof by changing it.
Although we will brief it at length, it behooves me now to say that the plaintiffs cannot prove that Dover's curriculum policy fails the establishment clause because it is an endorsement of religion that they would attribute to Dover's policy. Of course, the endorsement test is improper because the controlling case law is clear.
One need look no further than the plaintiffs' argument to see the absurd results that would follow from an effort to apply the endorsement test in this case, for by some strange alchemy, not science, it is the plaintiffs who seek to conjure an endorsement of religion from newspaper stories asserting that Dover's policy is religious when it addresses a scientific theory.
By this sleight of hand, a change to the ninth-grade curriculum, which results in a one-minute statement designed to spark curiosity and lead kids to the library, becomes a policy that has the primary effect of advancing religion, not just in Dover, but anywhere the paper is read. The world, the Court, must reject this effort to equate primary effect, butterfly effect, precisely because it has no support in the law and would create chaos.
In sum, Your Honor, I respectfully submit that the evidence of record shows that the plaintiffs have failed to prove that the primary purpose or primary effect of the reading of a four-paragraph statement to make the students aware of intelligent design, explaining that it's an explanation for the origins of life different from Darwin's theory, letting students know there are books in the library on this subject, does not, by any reasonable measure, threaten the harm which the establishment clause of the First Amendment to the United States Constitution prohibits, but, instead, the evidence shows that the defendants' policy has the primary purpose and primary effect of advancing science education by making students aware of a new scientific theory, one which Steve Fuller, accomplished by any man's measure, believes may well open a fascinating prospect to a new scientific paradigm.
This is the very sort of legitimate educational goal which the United States Supreme Court acknowledged in Edwards versus Aguillard. For these reasons, I respectfully submit that this Court must deny the plaintiffs' request for relief and instead declare that Dover's curriculum is constitutional and enter a judgment dismissing the plaintiffs' claims with prejudice.
Thank you, Your Honor.
THE COURT: I thank you, Mr. Gillen, for that argument. Now, any rebuttal from Mr. Rothschild?
MR. ROTHSCHILD: No rebuttal, Your Honor.
[That ends on page 90, but there are 5 more pages of comments by the judge.]
Yeah, eat steelhead or trout. Salmon lite!
And do take care of yourself. Just look at the big picture and ignore the messy details.
The argument that congressional chaplains are constitutional is not that they have to be Deists but that it has been an old tradition (predating the Constitution by 16 years IIANM) and that their function is mainly ceremonial.
Even Madison (as well as other founding fathers) recognized that this practice wasn't kosher according to the constitution but he concluded that is was de minimis and thus he decided not to rock the boat and give it a pass since there were more important matters to be addressed at that time.
Of course if congressional chaplains didn't exists and someone wanted to introduce them today then this would most likely be ruled to be unconstitutional but since it's a long-running tradition it's deemed OK.
So? First, there is the small matter of the 14th Amendment. Second, who gives a damn. I'm not an original intent theorist. I am a textualist with a strong respect for stare decisis where reasonable interpretations are made. I don't care what those that passed the act intended, I'm not going to worry about their feelings, I care about what they did; what they wrote.
Seems to me either you or they don't understand what the 1st Amendment menas. I'll go with the Founding Fathers, thank you very much.
No, I understand both. You just have a very shallow and ill-informed notion of legal thinking.
Huh? I was referring to FEDERALLY-sponsored displays and/or aids to religion, so I hardly see how the 14th Amendment is relevant here.
Second, who gives a damn. I'm not an original intent theorist. I am a textualist
Okay, so find the Lemon test in the Constitution. Not there? Didn't think so.
with a strong respect for stare decisis where reasonable interpretations are made.
Then you should respect the way it was interpreted for the 170 some odd years prior to the Lemon decision. But I suspect, like a liberal, you ignore stare deciscis when unless it's a precedent you like.
I don't care what those that passed the act intended, I'm not going to worry about their feelings, I care about what they did;
Do you care that the founders actually created the office of Congressional chaplain? Do you care that they let the Capitol building to be used as a Church free of charge? Do you care that they passed a law mandating that Federal territories encourage religion? Do you care that Washington added "so help me God" to the oath of office?
No, like a liberal, you ignore all precedent you don't like.
No, I understand both. You just have a very shallow and ill-informed notion of legal thinking.
The pot calls the kettle black.
Even Madison (as well as other founding fathers) recognized that this practice wasn't kosher according to the constitution
I looked this up. Madison only expressed this view long after he retired, in the so-called "detached memoranda." This was a flip-flop, as he was on record as supporting the chaplaincy while still active in politics. In addition, I could not find another founder who who agreed with him.
The clincher for me is that George Mason never once objected to any Federal public displays or references to religion, which were a commonplace in those days.
Yes, what about it? The NO was written by the last Continental Congress who was still under the authority of the Articles of Confederation and not under the Constitution which had not been approved yet. Moreover, that particular sentence was a last minute addition which was even watered down so the final version didn't mention religious institutions and the active support thereof. BTW, here is more detailed information on the Northwest Ordinance.
What about letting religious services to be held at the Capitol building?
Now I don't know whether religious services at the Capitol building have been explicitly ruled to be constitutional but lets assume that they haven't, the simple fact that they have been held at the Capitol doesn't automatically make this practice constitutional. It may well be that those who introduced this practice (or other practices pertaining to the involvement of the state with religion, whether sectarian or not) didn't think about its constitutionality or simply didn't care. And even if it is unconstitutional it can still go on if it's not challenged in court.
And religion is always a pretty delicate issue which means that challenging something like that in court can cause you a lot of trouble. In other words, even if you have the First Amendment on your side, you're still the party pooper or worse.
I looked this up. Madison only expressed this view long after he retired, in the so-called "detached memoranda." This was a flip-flop, as he was on record as supporting the chaplaincy while still active in politics. In addition, I could not find another founder who who agreed with him.
The clincher for me is that George Mason never once objected to any Federal public displays or references to religion, which were a commonplace in those days.
Well, of course he did. He was after all a politician. Do you really think he was eager to commit political suicide while he was still active? So of course it was easier for him to speak his mind after he retired.
You make it sound as if he changed his mind after he retired but from his writings (e.g. the Detached Memoranda or in a letter to Edward Livingston) it's clear that he did not and that it's more likely that in those instances you mentioned he rather acted against his convictions because he realized, like most politicians, that being pedantic on such issues doesn't take you very far. (on a side note: I always thought Madison was one of those who voted against the institution of congressional chaplains)
My mistake, I got this thread mixed up with another, where we were dealing with a state actor.
Okay, so find the Lemon test in the Constitution. Not there? Didn't think so.
The test is the way to determine what, exactly, the text means. It need not be in the text itself if it is a reasonable reflection of the text. (And I think it is mostly right, but not perfect.)
Then you should respect the way it was interpreted for the 170 some odd years prior to the Lemon decision. But I suspect, like a liberal, you ignore stare deciscis when unless it's a precedent you like.
I care for judicial precedent. Legislative practice is mostly irrelevant to my reasoning. The Congress could simply have been acting unconstitutionally for 200+ years. Lemon, itself, was an attempt to codify those judicial precedents. Not perfect, but it was mostly right.
...Do you care that the founders actually created the office of Congressional chaplain? Do you care that they let the Capitol building to be used as a Church free of charge? Do you care that they passed a law mandating that Federal territories encourage religion? Do you care that Washington added "so help me God" to the oath of office?
No, I don't care at all. The question isn't whether the legislative or executive branches have acted a certain way, but whether acting a certain way (even for 200+ years) goes against the Constitution. And I think that there is a strong case for the notion that Ceremonial Deism is incompatible with a prohibition against laws respecting the establishment of religion.
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