Thursday, December 22, 2005
(3:21 AM) | Old - Doug Johnson:
Intelligent Design? An Analysis of Kitzmiller
My first thought on seeing Berube's immediate jubilant reaction to yesterday's decision in Kitzmiller v. Dover Area School District was to think 'yeah, but won't it just be overturned?'. The opinion, as Berube's long quotes generously demonstrate, is something of a rhetorical tour de force. Eventually I couldn't resist and took a look at the 100+ pp. document myself (though I can't seem to link to it this morning without damned explorer shutting down on me). After perusing the document I was quite impressed. A legal juggernaut as well. For instance, even though Jones had already found that teaching ID violated the first prong of the Lemon test (and was thus unconstitutional), he went on to analyze whether it met the second prong, which observers had claimed would be the more interesting question. (See the Wikipedia article for a brief summary of the Lemon case and its three pronged test). In any event, the particular case almost certainly won't be directly overturned because there is no one left to appeal it after the eight Dover board members who passed the policy were thrown out on their asses by Pennsylvania voters.However, the issue ain't going away as there are court cases being pursued in several other states including Georgia. Eventually the Constitutionality of teaching ID will come before the Supreme Court. That august body has, after all, arrogated to itself the right to have the final word on every important domestic issue (and a great many foreign ones as well). And here's the rub: while Jones' decision is thorough, brilliantly crafted, and entertainingly worded, it is a decision that doesn't sufficiently deal with the drift of the current Court. The last time the Surpreme Court dealt with creationism substantially was in a 1987 Louisiana case, a ruling to which Judge Jones refers quite frequently. Jones' decision would be impeccable were the Court the same today as it was from the early 70's (when the Lemon standard was first promulgated) until 1992 when a significant challenge to the Lemon test was brought by George I's administration in Lee v. Weismann (a school prayer case).
The Lemon test had long been used to strike down almost any government policy or action that could be construed as non-secular. In 1992 conservatives were confident that with two newly Bush appointed Justices, they could start to take back the country for Jesus. Souter, however, surprised them and, with Sandra Day, joined a thin 5-4 majority in upholding Lemon. The minority opinion suggested that the Court overturn Lemon in favor of a position much closer to Michael McConnell's religious neutrality principle. And while Lemon held the day in 1992, the Court has since beat a steady path toward full acceptance of neutrality rather than secularlism as the standard.
The last Supreme Court case dealing squarely with religious issues came in 2000 in Mitchell v. Helms which ruled in favor of allowing states to loan neutral, non-ideological educational material and equipment to private, religious schools. Significantly the decision was 6-3, rather than a standard 5-4, with Stephen Breyer joining O'Connor, Kennedy, Scalia, Rhenquist, and Thomas. And that wasn't the first time neutrality was used as the primary standard. In Agostini v. Felton (standard 5-4) 1997 the Court upheld a law that included provisions for public school teachers to tutor in private, religious schools. What's more Souter's 1994 opinion in Board of Education of Kiryas Joel Village School v. Grumet made extensive use of the neutrality principle as did a unanimous 1993 decision in Lamb's Chapel v. Center Moriches Union Free School District. Another unanimous 1993 decision heavily freighted with neutrality rhetoric (Church of the Lukumi Babalu Aye v. City of Hialeah) declared unconstitutional a Florida law banning animal sacrifice - yeah animal sacrifice!
In short, while Jones' opinion in Kitzmiller has made immediate waves, it is unlikely to stand the test of time. Under the Lemon test, the case was surely decided rightly. The Dover board in no way had a secular purpose in requiring Intelligent Design teaching. But Lemon is for all intents and purposes dead. The Supreme Court upheld it in 1992, but has since heavily favored neutrality language (one could say that the second prong of Lemon is becoming king at the expense of the first prong). Will Kitzmiller stand up to analysis solely in terms of neutrality? Absolutely not. In fact, neutrality standards will shift the weight of the law against evolution-only teaching. McConnell's neutrality test demands that the government not show an inclination toward any particular religion or toward secularism.
As such, where IDers have been put in the dubious position of having to argue that ID serves a secular purpose, those opposed to ID will soon be in the awkward position of having to argue that evolution is in no way hostile to religion. Otherwise, a court could find that teaching only evolution puts the state into a position of hostility instead of neutrality with respect to religion. In such a situation, my friends, the question of whether or not ID is Science would become legally irrelevant.
