Now on to Frieler and Judge Jones. Judge Jones goes out of his way to misinterpret Freiler. Here is what the appeals court had to say about Frieler in denial of rehearing en banc:
"In denying rehearing, we emphasize that we do not decide that a state-mandated statement violates the Constitution simply because it disclaims any intent to communicate to students that the theory of evolution is the only accepted explanation of the origin of life, informs students of their right to follow their religious principles, and encourages students to evaluate all explanations of life's origins, including those taught outside the classroom. We decide only that under the facts and circumstances of this case, the statement of the Tangipahoa Parish School Board is not sufficiently neutral to prevent it from violating the Establishment Clause."
The simple fact of the matter is the decision was upheld because the Freiler disclaimer mentioned the Bible. So Jones was activist in expanding on the courts holding since the Dover disclaimer never mentioned the Bible and in adding his stifling language.
Now on to my assertion that anybody conservative supporting Freiler and Judge Jones holding that reminding school children that they can not maintain parental taught beliefs becuase they stifle critical thinking is a faux conservative.
Le's hear from the conservatives on the court on Freiler.
"Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal." Scalia, Thomas, Rehnquist
And now a question for you Senator. Is Freiler constitutional law?
That is what the dissenters said, in objecting to the denial of rehearing - as a matter of law, it is a nullity. It has no value as precedent - it merely reflects the opinions of those who would have reheard the case. Unfortunately for them, the rehearing was denied, and they were limited to this little legal spitball ;)
As for the actual holding in Freiler, there is this:
Against this jurisprudential backdrop, the School Board argues that the contested disclaimer's primary effect is "to communicate to students that they are free to form their own opinions or maintain beliefs taught by parents concerning the origin of life and matter." According to the School Board, the disclaimer advances freedom of thought, as well as sensitivity to, and tolerance for, diverse beliefs in a pluralistic society. We disagree....which is pretty much what Jones was on about.
In assessing the primary effect of the contested disclaimer, we focus on the message conveyed by the disclaimer to the students who are its intended audience. See County of Allegheny , 492 U.S. at 620, 109 S. Ct. at 3115. After careful consideration of the oral arguments, the briefs, the record on appeal, and the language of the disclaimer, we conclude that the primary effect of the disclaimer is to protect and maintain a particular religious viewpoint, namely belief in the Biblical version of creation.
Le's hear from the conservatives on the court on Freiler.
That and a buck will...well, you know ;)
As for whether I think it's constitutional or not, my opinion doesn't mean much, as a matter of law - I don't sit on any bench anywhere. For the moment, it is the law. Perhaps Cobb will provide a vehicle for SCOTUS to revisit the issue - but I tend to doubt that they have the stomach for it.