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To: All
A few observations on this closing argument. To understand what's really going on, remember that this is all about the three-pronged Lemon test, which comes from LEMON v. KURTZMAN, 403 U.S. 602 (1971), to determine if a state action violates the establishment clause of the First Amendment:
First, the statute [or state action] must have a secular legislative purpose;

second, its principal or primary effect must be one that neither advances nor inhibits religion,

finally, the statute must not foster "an excessive government entanglement with religion."

With that legal background, you can see what all the testimony was about, and how the defense is seeking to show that Lemon doesn't apply to what the school board did.

The third paragraph of the closing argument gets right to it:

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.
This is specifically addressed at the first prong of the Lemon test. If the plaintiffs proved this point, they win.

Next paragraph:

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 ...
That's the school board's argument in order to avoid flunking the Lemon test.

Moving down a dozen or more paragraphs (and I'm inserting some stuff in brackets, to clarify what I think the attorney is getting at):

More importantly, neither Bonsell nor the board can be penalized for [having an] interest [in religion] 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.

Again, they're arguing that the actions of the school board slip through the Lemon test. My last excerpt from the argument is a few dozen paragraphs further on, and it's aimed at the next prong of the Lemon test:
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.

And so it goes. It's all about Lemon.
18 posted on 11/16/2005 4:41:18 PM PST by PatrickHenry (Expect no response if you're a troll, lunatic, retard, or incurable ignoramus.)
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To: PatrickHenry
From the text of the closing:

"Jane Cleaver is the same. She has an eighth-grade education."
[emphasis added]

I assume she's one of the defendants; i.e., a member of the Dover School Board.

Who in their right mind would rely on a person with an eigth grade education to determine what is and is not a valid scientific theory, or worse still, what the definition of science ought to be? Her scientific knowledge clearly isn't the basis for her decision regarding the ID statement, so what then is it that informs her that she and her fellow Dover School board members should go tampering with the definition of science so as to include supernatural causation? Perhaps her own beliefs in the "supernatural"?

29 posted on 11/16/2005 5:28:41 PM PST by longshadow
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To: PatrickHenry
And so it goes. It's all about Lemon.

You need to read pages 21-23 of transcript. if it is "all about Lemon", the plaintiffs may have a huge problem. The plaintiffs even seem to recognize it. Given recent USSC jurisprudence, which almost invites a case which the justices can use to modify it, or even toss it completely; this case is a good candidate for a decision by the USSC if they disagree with the 3rd Circuit.

I am not going to predict how the judge will rule, but the Lemon test is in big trouble.

I do want to thank you for posting all the threads about this trial. It has been interesting.

52 posted on 11/16/2005 6:51:06 PM PST by connectthedots
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