Sheridan: Con-Law

INTELLIGENT DESIGN

The Dover, Pennsylvania 'intelligent design' case that's been in federal district court, where parents sued the school board for requiring a form of creationism to be taught as science in science classes has finally been decided after a six-week trial that was frequently in the news.  After the break, below, is the LA Times article describing who won, and why.

To read the 139 pages in pdf format, go here.  The case is called Kitzmiller v. Dover Area School District.

INTELLIGENT DESIGN

Garry Trudeau, the creator of Doonesbury, says more, and wittily, in a few words on issues of the day than any writer I know.

Today's Sunday cartoon strip begins with the doctor inspecting the patient's chest X-ray.

Pt:            TB?  My God!  Are you sure?

MD:           Afraid so.  But we caught it early.

Pt:             So my prognosis is good?

MD:           Depends.  Are you a creationist?

Pt:             Why, yes.  Yes, I am.  Why do you ask?

MD:           Because I need to know whether you want me to treat the TB bug as it was before antibiotics...

                      ...or as the multiple-drug-resistant strain it has evolved into.

Pt:             Evolved?

MD:           Your choice.  If you go with the Noah's Ark version, I'll just give you streptomycin.

Pt:             Um...what are the newer drugs like?

MD:           They're intelligently designed.

INTELLIGENT DESIGN: A HOAX?

This is the sort of thing that made me want to become a lawyer.

A lawyer is a person who uses brainpower, education, effort, and experience to try to get to the truth of a matter, especially the Big Lies or Other Untruths from Adolph Hitler to Sigmund Freud to the Creationists and Intelligent Design fanatics.

Daniel C. Dennett, according to the book jacket for Freedom Evolves (Viking Press 2003), is University  Professor and Director of the Center for Cognitive Studies at Tufts University.  He's also makes some of the best arguments I've ever seen when it comes to the defense of Darwin's Dangerous Idea (the title of a Dennett book which I'd recommend).

Below is his Op-Ed in the New York Times today taking on the Intelligent Design crowd, who profess not to know who Mr. Intelligent Designer really is.   Well, I think I can tell them.  His name is Allah and he's a boy, or maybe a man.  He also has 72 virgins waiting for the winner of the debate.  This makes it kind of tough to side with Dennett, I must say.

EVOLUTION

1/16/05:   An Alternative to Evolution Splits a Pennsylvania Town.  Neela Bannerjee, of the New York Times, reports on the controversy in Dover, Pennsylvania, where parents have pressured the school board to include in the biology class curriculum an alternative to Darwin's study of the evidence, and his remarkable conclusion, that you, perhaps, and most certainly me, are descended from a line of apes; an intelligent, decent, sort of ape, however.  In my case, that is.

My own modest proposal would be to ask whether it would turn the world upside down were the school board to consider a class in Evidence, or, better yet, Critical Thinking.  "Critical thinking" is an  academic term denoting courses or study concerned with subjects such as Logic, Reasoning, Rhetoric or Argument, Propaganda, How We Think About the World, and the like.  It's sort of the Constitutional Law of the World of Thinking.

Perhaps if the biology classes started with the evidence first, and let the student's play Charles Darwin, or the Bishop of Usher, some of the heat of the controversy will be dispelled.  No, not dispelled.  This controversy isn't going away, nor dying down.  But it might find sounder footing if it deals with the evidence first, instead of asking how may trilobytes dance on the head of a pin.

As Thomas Sowell truly wrote,

"The key to creating an illusory world is a biased selection of facts according to a preconceived notion."

There goes my idea.

Which evidence shall we select for "Show and Tell?"

Are we going to leave it to the school board to dictate the answer?  Or the biology teacher? 

Which is less attuned to the political winds blowing from the religious quarter.

That's the one I want to decide.

My further idea?  (It's not mine, really, I borrowed it from a few cases we study, later.)  It's to have government, which includes the public schools, serve as a neutral forum, in which neither your religious views nor mine receive the Gummint Seal of Approval. 

There is no Gummint Seal of Approval.

Of course, the Creationists will say that my Evolutionist views are a form of religion in themselves, so where do I get off saying that?

That's where we part company, pardner.  You're gettin' too high for me.

I prefer to look at the evidence on the ground, and then we may be able to decide.  I love the idea of a God who'll be kind enough to see to it that the tsunami (12/26/04) doesn't hit where I live, but the idea of a supposedly all-powerful God who trips one off in the Indian Ocean at the cost of over 150,000 lives, men, women, and children, suggests that I ought to be open to the notion that the romantic God-idea most of us seem to have been imbued with is something we may have made up to provide comfort to the afflicted and to satisfy little children. 

But I would never say that in public, of course.  The Inquisition might come down on me, and I would not look good burning at the stake, without the French Fries, of course. 

In Europe, I've read, they've given up on the notion of "Gott Mit Uns" a long time ago.  Not us, though.  We won the war.  Gott must have been mit uns.  That's why we've been "under God" since 1954 when Congress passed a law saying so.  Put it right there in the Pledge, when I wuz still in P.S. 29, learning about the country and the world.

***

This is the sort of decision that makes me think there really is a God...

A federal judge has ordered the removal of a sticker from a science textbook, placed there by school authorities, satisfying a group of religious parents and religious activists, stating that evolution is a theory, as opposed to a scientific fact.  Science teachers have been up in arms.  Especially since the Scopes Monkey Trial, in Tennessee, between Clarence Darrow and William Jennings Bryan in the '20s.

The current judge says, Hey, anyone with an ounce of sense knows that this sticker arises out of a religious controversy, and when the school authorities allowed the stickers to be placed in the textbooks, they were playing the religious card, which violates the 3-part Lemon test, the part that tells the gummint not to endorse a particular religion or religion in general.

Here's the Article, from the New York Times:

January 14, 2005

 

Judge in Georgia Orders Anti-Evolution Stickers Removed From Textbooks

 

By ARIEL HART

   

TLANTA, Jan. 13 - A federal judge in Georgia has ruled that schools in Cobb County must remove from science textbooks stickers that say "evolution is a theory, not a fact" that should be "approached with an open mind, studied carefully, and critically considered."

The judge, Clarence Cooper of Federal District Court, wrote that the stickers, perhaps inadvertently, "convey a message of endorsement of religion," violating the First Amendment's separation of church and state and the Georgia Constitution's prohibition against using public money to aid religion.

"I'm ecstatic," said Jeffrey Selman, one of five parents who won the suit against the school district. "Science is religion free, and it has to stay that way."

Mr. Selman said he thought the ruling would be a warning to fundamentalists nationwide, especially in Dover, Pa., where parents have sued their school board for telling teachers to read students a statement that suggests an alternative to evolution, intelligent design, which posits a creator.

A lawyer representing the Dover school board said Judge Cooper had explicitly said he was not ruling on whether public schools could teach intelligent design.

In his ruling, Judge Cooper applied the Lemon test, which was laid out by the Supreme Court in a 1971 case, Lemon v. Kurtzman. Under that test, the sticker would violate the Constitution if it did not have a secular purpose, if its primary effect advanced or inhibited religion, or if it created an excessive entanglement of the government with religion.

Judge Cooper upheld his earlier ruling that the sticker's purpose was secular enough, that it fostered critical thinking and presented evolution to students who oppose it in a "not unnecessarily hostile" way.

But he found that the effect of the sticker in singling out evolution, given the roots of the sticker and its language in religious challenges to evolution, was to convey a message of endorsement of religion. His 44-page order argued that any informed, reasonable person would know the religious controversy behind the sticker.

The Cobb County school system adopted the stickers in 2002 along with well-regarded textbooks that taught evolution. During the textbook adoption process, the school board realized it would have to change its policy, which for years had forbidden any teaching about the origin of humans in elementary and middle schools and in required high school classes, "in respect for the family teachings of a significant number of Cobb County citizens."

The school board argued that the sticker was a neutral gesture to parents who had lost the fight against evolution. "I was a little disappointed but not terribly surprised," said Linwood Gunn, a lawyer for the schools. "I think the court adopted the viewpoint that any potential disparagement of evolution is equivalent to promotion of religion."

The board said it would review the decision and decide whether to appeal.

Michael Manely, who represented the parents for the American Civil Liberties Union, said, "I am relieved."

Mr. Manely added that it was "a blow for folks who want to guarantee the separation of church and state and guarantee liberty for all."

Eugenie Scott, executive director of the National Center for Science Education in Oakland, Calif., which advocates the teaching of evolution, praised Mr. Manely and his team, saying, "The rest of us thought that going after fact not theory was not going to work; we were not sure the judge would recognize the trend of historical relationship between 'theory not fact' wording and creationism."

Marjorie Rogers, a parent and creationist whose petition drive led to the sticker, said she was disappointed by the decision, but she "never was thrilled" with the sticker's wording, which she found weak. She said she was considering what to do next.

Copyright, The New York Times, 2005

***

Below is the headnote from the leading case, Edwards v. Aguillard, on religiously inspired statutes that ban the teaching of the scientific doctrine of evolution in the schools, i.e., Charles Darwin, Richard Dawkins, and the like, on which the federal judge relied:

                 EDWARDS v. AGUILLARD, 482 U.S. 578 (1987)

482 U.S. 578

         EDWARDS, GOVERNOR OF LOUISIANA, ET AL. v. AGUILLARD ET AL.
    APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
   
No. 85-1513.
 
Argued December 10, 1986
Decided June 19, 1987

 

Louisiana's "Creationism Act" forbids the teaching of the theory of evolution in public elementary and secondary schools unless accompanied by instruction in the theory of "creation science." The Act does not require the teaching of either theory unless the other is taught. It defines the theories as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences." Appellees, who include Louisiana parents, teachers, and religious leaders, challenged the Act's constitutionality in Federal District Court, seeking an injunction and declaratory relief. The District Court granted summary judgment to appellees, holding that the Act violated the Establishment Clause of the First Amendment. The Court of Appeals affirmed.

Held:

1. The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose. Pp. 585-594.

 

(a) The Act does not further its stated secular purpose of "protecting academic freedom." It does not enhance the freedom of teachers to teach what they choose and fails to further the goal of "teaching all of the evidence." Forbidding the teaching of evolution when creation science is not also taught undermines the provision of a comprehensive scientific education. Moreover, requiring the teaching of creation science with evolution does not give schoolteachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Furthermore, the contention that the Act furthers a "basic concept of fairness" by requiring the teaching of all of the evidence on the subject is without merit. Indeed, the Act evinces a discriminatory preference for the teaching of creation science and against the teaching of evolution by requiring that curriculum guides be developed and resource services supplied for teaching creationism but not for teaching evolution, by limiting membership on the resource services panel to "creation scientists," and by forbidding school boards to discriminate against anyone who "chooses to be a creation-scientist" or to teach creation science, while failing to protect those who choose to teach other theories or who refuse to teach creation science. A [482 U.S. 578, 579] law intended to maximize the comprehensiveness and effectiveness of science instruction would encourage the teaching of all scientific theories about human origins. Instead, this Act has the distinctly different purpose of discrediting evolution by counter-balancing its teaching at every turn with the teaching of creationism. Pp. 586-589.

 

(b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching. The Act's primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment. Pp. 589-594.

 

2. The District Court did not err in granting summary judgment upon a finding that appellants had failed to raise a genuine issue of material fact. Appellants relied on the "uncontroverted" affidavits of scientists, theologians, and an education administrator defining creation science as "origin through abrupt appearance in complex form" and alleging that such a viewpoint constitutes a true scientific theory. The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. Pp. 594-596.

 

765 F.2d 1251, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in all but Part II of which O'CONNOR, J., joined. POWELL, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 597. WHITE, J., filed an opinion concurring in the judgment, post, p. 608. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined, post, p. 610.

***

CBS columnist/attorney Andrew Cohen chimes in with this opinion column, reporting on the facts that led up to the lawsuit, and concluding that trying to compromise with constitutional principles is nearly always a mistake. 

On some of them, at least. 

For the others it's their life's blood. 

The problem is someone's gotta pick out which are relative and which are absolute.  Ha.

For Justices Black and Douglas, First Amendment free expression was claimed to be near-absolute.

Also the non-establishment of religion. 

See Everson v. Board of Education (1947) 330 US 1, and Justice Jackson's dissent, quoting the poet, Lord Byron, about the virginal Julia, who, "whispering, "I will ne'er consent," consented." 

The question was whether the state (New Jersey) violated the non-Establishment of Religion Clause by subsidizing the cost of transporting kids to Catholic School using public funds. 

After railing about the wall of separation between Church and State and how it could never be breached, Black breached it, by allowing the taxpayer subsidy for parochial school transportation.

It's the difference between transporting students in the bus, via Diesel, and transporting students in the classroom, via Teaching, I suppose.

Nothing is absolute in the real world, not even the real world...

***

Mother Times has this editorial laying out the problem, and a proposed solution.

Cornelia Dean of the New York Times (2/1/05) has this report on how evolution is not taught in schools where the teachers are too busy with other subjects and want to avoid making waves with parents and school boards.