In this our last installment in our series on the opinion of Judge John Jones in Kitzmiller v. Dover we'll follow the Judge as he moves from his critique of the scientific standing of Intelligent Design to an examination of the motives of several prominent board members in trying to get ID formally mentioned in biology classes. If it can be shown that the primary movers on the board had a religious purpose in trying to accomplish their goal then, the Judge argues, their attempt would fail the Lemon test (from Lemon v. Kurtzman, 1971) which explicitly forbids such motivations in introducing curricular materials into schools.
Whether Lemon is good law or not, it is the law, and it does appear that the board members violated it's stipulation that there must be a secular purpose to all public school curricular materials. Highlights of the Judge's reasoning are excerpted in what follows:
We initially note that the Supreme Court has instructed that while courts are "normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham."
Although as noted Defendants have consistently asserted that the ID Policy was enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking skills, the Board took none of the steps that school officials would take if these stated goals had truly been their objective. The Board consulted no scientific materials. The Board contacted no scientists or scientific organizations. The Board failed to consider the views of the District's science teachers. The Board relied solely on legal advice from two organizations with demonstrably religious, cultural, and legal missions, the Discovery Institute and the TMLC. Moreover, Defendants' asserted secular purpose of improving science education is belied by the fact that most if not all of the Board members who voted in favor of the biology curriculum change conceded that they still do not know, nor have they ever known, precisely what ID is. To assert a secular purpose against this backdrop is ludicrous.
Finally, although Defendants have unceasingly attempted in vain to distance themselves from their own actions and statements, which culminated in repetitious, untruthful testimony, such a strategy constitutes additional strong evidence of improper purpose under the first prong of the Lemon test. As exhaustively detailed herein, the thought leaders on the Board made it their considered purpose to inject some form of creationism into the science classrooms, and by the dint of their personalities and persistence they were able to pull the majority of the Board along in their collective wake.
Any asserted secular purposes by the Board are a sham and are merely secondary to a religious objective.... Defendants' previously referenced flagrant and insulting falsehoods to the Court provide sufficient and compelling evidence for us to deduce that any allegedly secular purposes that have been offered in support of the ID Policy are equally insincere.
Accordingly, we find that the secular purposes claimed by the Board amount to a pretext for the Board's real purpose, which was to promote religion in the public school classroom, in violation of the Establishment Clause.
The core notion animating the requirement that . . . [an official act's] 'principal or primary effect . . . be one that neither advances nor inhibits religion,' is not only that government may not be overtly hostile to religion but also that it may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general, compelling nonadherents to support the practices or proselytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community.
It's unfortunate that Judge Jones has never read Roy Clouser's The Myth of Religious Neutrality. Clouser demonstrates in the first part of his book that the only thing that all religions share in common, and which therefore distinguishes a religion as such, is a divinity belief. By this he means that every religion holds a belief that something is unconditionally, non-dependently real and is the ultimate source of everything else. Since everyone holds that something is the non-dependent source of everything else, everyone, even the naturalist who believes the ultimate, non-dependent source is nature, or the materialist who believes it is matter, holds a religious belief.
When the Darwinian therefore claims that all of life is the product purely of natural, blind, purposeless mechanisms he is advancing a religious belief. The effect of the Judge's ruling, though he is unaware of it, was not to ban religion from the science classroom because that's an impossible task, but rather to ban a certain kind of religious claim from the classroom - the claim that matter, or the cosmos, might not be the non-dependent source of everything else.
In an astonishing contortion of justice the judge has banned the claim that the cosmos is not divine and privileged the claim that it is divine against any and all official criticism.
Judge Jones goes on to write:
This is simply untrue. As we have pointed out in earlier posts on this decision, there are dozens, perhaps hundreds of biologists and other scientists who have testified in print that the theistic beliefs of their youth were extinguished precisely by their education in the theory of materialistic evolution.
It is true that evolution need not be seen as antagonistic to theism, but it is disingenuous of the plaintiffs' witnesses to say that "it in no way conflicts with, nor does it deny, the existence of a divine creator." Indeed, the Judge regarded the assertion made by ID proponents that ID doesn't entail the existence of the God of the bible as a sham. Yet he does not see that if it is indeed a sham then certainly the claim that there is no conflict between a materialistic, naturalistic theory and a theory that suggests that theism is true is a forteriori a sham as well.
In his conclusion, the Judge states the following:
The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.
With this we are in agreement. It is exceedingly distressing that people who call themselves Christians would not act more honorably than a couple of the board members chose to act. We're all weak. We all fail in one way or another, but one wishes that Christians in such a high-profile position, Christians upon whom the eyes of a hostile secular press are focussed, would rise above the level of the rest of us and bring more credit and less disgrace to the Faith to which they claim to adhere.
With that said, we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom. Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.
It must be noted here what the Judge's decision entails. The italicized sentence above is clear that it does not prohibit ID from being mentioned or discussed by science teachers at their own discretion, nor does it prohibit those teachers from discussing problems within evolutionary theory. It merely prevents the Dover school board from requiring that any of this be done. Nor does his ruling prohibit ID from being taught in other classes besides science classes, but it is unclear whether his opinion would prevent a school board from mandating that a philosophy or social studies class, especially an elective, be set up to accomplish this.
Of one thing, though, we can be fairly confident, and that is that the shortcomings of the Judge's reasoning in support of his decision are going to leave plenty of openings for further challenges down the road. It's doubtful that we've seen the last of this issue.
Previous posts in this series can be read, in order, here, here, here, and here.