When Real Judicial Conservatives Attack [Dover ID opinion]

The UCSD Guardian ^ | 09 January 2005 | Hanna Camp

[curiosity]

Some religions say we evolved, some say we were designed.

Wrong. Science says we evolved. Some religions insist on direct, supernatural design. Other religions do not set themselves against science, but embrace it.

Science, despite all the bluster, doesn't know for sure.

That's where you're incorrect.

[Binghamton_native]

You wrote:

"First of all, Rehnquist, God rest his soul, accepted the incorporation doctrine and agreed with Curtis in this regard".

From Stanford Magazine (Alumni Association magazine), July-August 2005

http://www.stanfordalumni.org/news/magazine/2005/julaug/features/rehnquist.html

Throughout his career, Rehnquist has espoused a view of the 14th Amendment that emphasizes the rights of states to deal with issues ranging from capital punishment to various forms of discrimination, free of federal interference. As a law clerk for Justice Jackson, he told his boss in a memo that Plessy v. Ferguson, the 1896 decision that had upheld “separate but equal,” should be affirmed. (When questioned about the memo during a Senate Judiciary Committee hearing about his nomination to the court in 1971, Rehnquist said this was a restatement of Jackson’s views and did not reflect his own.)

In a voting rights case, Terry v. Adams, he wrote Jackson that “It is about time the Court faced the fact that the white people in the South don’t like the colored people; the Constitution restrains them from effecting this dislike through state action, but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head. To the extent that this decision advances the frontier of state action and ‘social gain,’ it pushes back the frontier of freedom of association and majority rule.”

Rehnquist voiced similar views as a young lawyer in Phoenix, where he testified in 1964 before the city council against an ordinance that banned discrimination in public accommodations. As an assistant attorney general in the Nixon administration, and later as a justice, Rehnquist interpreted the amendment in a way that fueled his disagreement with the liberal Warren Court’s decisions advancing the civil rights movement and expanding the rights of criminal defendants.

His dissent in Roe v. Wade in 1973 spoke directly to the issue of states’ rights. “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment,” he wrote. The drafters, Rehnquist continued, “did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

As late as 2000, writing for the court in a ruling that struck down a provision of the Violence Against Women Act permitting rape victims to sue their attackers in federal court, Rehnquist cited a string of late-19th-century cases that construed the 14th Amendment narrowly. They were still good law, he wrote, in part because the court that produced them “had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment,” and hence of its framers’ intent.

From the above, it would not appear that Rehnquist sided with Curtis.

[puroresu]

No one knows for certain that we evolved from micro-organisms. There is no certainty that micro-to-man evolution occurred. And if it did occur, no one knows for certain that God had nothing to do with it.

It's not Establishment of a religion to note those facts in a public building.

Suppose, for the sake of argument, that vouchers become the norm, the public schools close down, and everyone sends their kids to a private school. Half the public sends their kids to private schools that teach evolution, the other half to private schools that teach both evolution and ID.

What do you think would be the response of the two sides in this battle? My guess is that the ID side would leave the pro-evolution schools alone. But the evolutionists would try every trick in the book to force the schools that teach both to adopt "evolution only" education. They'd insist that vouchers are aid to the school. They'd insist that the public services the school receives (mail delivery, garbage collection) constitute government participation in the school's activities. They'd constantly nitpick at those schools with lawsuits and demands of government intervention until they either found a court to shut them down or bankrupted them with legal fees.

They'd never allow half the kids in the country to hear an alternative in school, because to them evolution is a religion...THEIR religion....and they demand a theocracy on this issue.

[curiosity]

No one knows for certain that we evolved from micro-organisms. There is no certainty that micro-to-man evolution occurred.

It is as certain as any other well-substantiated theory in science.

And if it did occur, no one knows for certain that God had nothing to do with it.

I agree, and no mainstream biology text I know of makes such a claim.

It's not Establishment of a religion to note those facts in a public building.

I agree (with regard to the second fact, the first one is false), but that's not what ID is about. ID, as presented in the Pandas and People textbook, is the scientifically false claim that certain biological entities could not have evolved in a Darwinian manner.

Suppose, for the sake of argument, that vouchers become the norm, the public schools close down, and everyone sends their kids to a private school. Half the public sends their kids to private schools that teach evolution, the other half to private schools that teach both evolution and ID.

I would have no constitutional objection to this.

What do you think would be the response of the two sides in this battle? My guess is that the ID side would leave the pro-evolution schools alone. But the evolutionists would try every trick in the book to force the schools that teach both to adopt "evolution only" education.

I certainly would oppose giving vouchers to schools that teach ID in biology class as an alternative to evolution, but I would not do it in the courts. I would lobby the state education boards and/or accredidation organizations to deny vouchers to schools that teach any pseudoscience, ID included. Giving vouchers to such schools is bad education policy. However, so long as parents have a choice to use their voucher at a school that does teach sound science, I can't see how such a policy, bad and harmful as it may be, would violate the establishment clause.

[curiosity]

Sorry, but Rehnquist has explicitly stated that the 14th Amendment applies the bill of rights to the states on many occaisions. Here's just one of the many opinions he's authored that indicate this:

The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion.

You can read his full opinion here:

http://www.law.cornell.edu/supct/html/00-1751.ZO.html

Your Stanford article mearly indicates that Rehnquist reads the amendment in question a little more narrowly than his colleagues. Nowhere does it provide any evidence that he rejects the incorporation doctrine, something no one even remotely familiar with Rehnquist's opinions would ever suggest.