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Albert Alschuler on Dover

The court offers convincing evidence that some members the Dover school board would have been delighted to promote their old time religion in the classroom. These board members apparently accepted intelligent design as a compromise, the nearest they could come to their objective within the law. Does that make any mention of intelligent design unconstitutional? It seems odd to characterize the desire to go far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens. The Dover opinion appears to say that the forbidden preference taints whatever the board may do, and if the public can discern the board’s improper desire, any action it takes also has an unconstitutional effect. If board members would like to teach Genesis as the literal truth, the board may not direct teachers even to mention the anamolies in the theory of natural selection that the court itself recognizes. The court seems to declare, “Because we find that you would like something you can’t have, we hold that you can’t have anything.” MORE

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8 Responses to Albert Alschuler on Dover

  1. Yesterday NPR aired the most pro-ID piece I’d ever heard. You can listen to it here.

    http://www.npr.org/templates/s.....Id=5063386

  2. From the article:
    “The court offers convincing evidence that some members the Dover school board would have been delighted to promote their old time religion in the classroom. These board members apparently accepted intelligent design as a compromise, the nearest they could come to their objective within the law. Does that make any mention of intelligent design unconstitutional? It seems odd to characterize the desire to go far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens.”

    Parse those last two sentences. Alschuler is effectively saying, “How can their motive be considered unlawful if they were only trying to get away with what they thought the law allowed?”

    That is a bizarre position for a law professor to take. Since when has “I thought it was legal” made an action lawful?

    Take a look at what the Lemon test says:

    “As articulated by the Supreme Court, under the Lemon test, a government-sponsored message violates the Establishment Clause of the First Amendment if:
    (1) it does not have a secular purpose;
    (2) its principal or primary effect advances or inhibits religion; or
    (3) it creates an excessive entanglement of the government with religion.”

    The language is clear. If it doesn’t have a secular purpose, it’s not constitutional. The Dover Board clearly did not have a secular purpose, as Judge Jones found and Alschuler himself acknowledges. Where does “intent to remain within the law” factor into this test?

  3. “That is a bizarre position for a law professor to take. Since when has “I thought it was legal” made an action lawful?”

    That is not what he was saying. What he was saying was that, lets say you want X, but X is illegal. Y is a subset of X, but Y is perfectly legal. The Dover ruling said that _wanting_ X invalidates Y. The law professor was noting that wanting X and restricting yourself to Y is what good citizenship is all about. The law does not ask you to give up your wants, but only to control them within legal limits.

  4. “The Dover Board clearly did not have a secular purpose”

    You don’t think that criticisms of evolution serve a secular purpose? By “having a secular purpose” it does not mean that the person is necessarily trying to serve a religious or secular purpose, but only that it must itself serve a purpose distinct from religion.

  5. “The Dover ruling said that _wanting_ X invalidates Y.”

    This is a mischaracterization of the Dover ruling. From page 18 of the ruling:

    1. An Objective Observer Would Know that ID and Teaching About “Gaps” and “Problems” in Evolutionary Theory are Creationist, Religious Strategies that Evolved from Earlier Forms of Creationism.

    He then proceeds, over the following 18 pages, to provide the reasoning for this. So to use your analogy, what Judge Jones is saying is that X=Y, X is illegal, therefore Y is illegal. Fairly simple logic. The hard part is demonstrating that X=Y.

  6. johnnyb wrote:
    “lets say you want X, but X is illegal. Y is a subset of X, but Y is perfectly legal. The Dover ruling said that _wanting_ X invalidates Y.”

    No. The Dover ruling effectively says “If you want X for religious reasons, but you settle for Y only because you know that X is illegal, then your motive for Y is obviously still religious.”

    From the opinion:
    “The disclaimer’s plain language, the legislative history, and the historical
    context in which the ID Policy arose, all inevitably lead to the conclusion that
    Defendants consciously chose to change Dover’s biology curriculum to advance
    religion. We have been presented with a wealth of evidence which reveals that the
    District’s purpose was to advance creationism, an inherently religious view, both
    by introducing it directly under the label ID and by disparaging the scientific
    theory of evolution, so that creationism would gain credence by default as the only
    apparent alternative to evolution…”

    johnnyb again:
    “You don’t think that criticisms of evolution serve a secular purpose? By “having a secular purpose” it does not mean that the person is necessarily trying to serve a religious or secular purpose, but only that it must itself serve a purpose distinct from religion.”

    Johnny, you need to brush up on your constitutional law.

    From the Supreme Court’s Lynch v. Donnelly opinion (1984):
    “The purpose prong of the Lemon test requires that a government activity have a secular purpose. That requirement [465 U.S. 668, 691] is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes. In Stone v. Graham, 449 U.S. 39 (1980), for example, the Court held that posting copies of the Ten Commandments in schools violated the purpose prong of the Lemon test, yet the State plainly had some secular objectives, such as instilling most of the values of the Ten Commandments and illustrating their connection to our legal system…”

  7. To hell with precedent…the courts in the past have screwed americans in regards to the 1st amendment. if precedent is clearly wrong and violated the constitution, as the lemon test itself clearly does…work to reverse it in the courts, thru legislation, etc. if a court set precedent declaring murder okay, surely wed remedy that situation. the founders clearly had no intention of banning the teaching of religious ideas or even actively promoting religion- the first congress spent over $300, 000 to buy bibles to give to the native americans for the purpose of converting them to christianity. given that and the many comments of the founders- no one can argue they would want to ban the 10 commandments, prayer in school, “christmas” on the school calendar, or even outright creationism. surely they never wanted to ban an idea such as ID which might have religious implications to many, but so does NDE theory.

    The lemon test is bad precedent that needs to be tossed aside for something that is actually constitutional.

  8. The Courts Overstepped the First Amendment a long time ago.

    The arguments relayed by Judge Jones are well downstream of the original intent of the 1st Amendment. The language of the First Amendment is clear as a bell. “Congress shall make no law….”

    The Constitution no more prohibits the school board in Dover PA from making a law than the Constitution prohibits Congress from starting each session with a prayer. There is no doubt the Framers intended that everyone (including the free and duly elected school Board of Dover PA) EXCEPT Congress would have every right to establish the standards for their schools: religious, non-religious or both.

    Would we be having these difficulties if the government via the courts themselves had not gotten “entangled” in the “dis-establishment” of religion apart from actions of Congress? THE COURT *IS* A BRANCH OF *GOVERNMENT*.

    In fact, I think the judge himself violated the Lemon Test.
    “As articulated by the Supreme Court, under the Lemon test, a government-sponsored message violates the Establishment Clause of the First Amendment if:”
    Judge Jones’ ruling is a “government-sponsored message” is it not?
    Simply substitute the word “ruling” for “statute” and you have three violations:

    “First, the ruling must have a secular purpose”
    Since atheism is a faith and since philosophical naturalism is rooted in atheism and since evolution theory adheres to the principles of philosophical naturalism, ruling against the Dover School Board had a religious purpose: it excluded one religious faith in favor of another religious faith.
    The courts have done what the Legislature is Constitutionally prohibited from doing–the Court has established atheism as the official state religion.

    “Second, “the ruling’s” principal or primary effect
    must be one that neither advances nor inhibits religion”
    Argue all you want that Judge Jones’ ruling doesn’t advance atheism (it does), it certainly and surely inhibits all competing religions that posit a Creator: Judaism, Islam, Christianity, Buddism, Deism….

    “Finally, the statute must not foster “an excessive government
    entanglement with religion.”"
    Judge Jones’ ruling simply perpetuates government entanglement (ie. court entanglement) in religious affairs in the public square. The only end of government entanglement with respect to religion in America is when the Court BACKS OFF and restores to Americans their Constitutionally Guaranteed freedoms with the ONLY limitation being on CONGRESS.

    The Constitution was brilliantly designed to prevent the VERY KINDS OF PROBLEMS we’re having in America today. The Dover School Board is not Congress. Local governments and state governments can make law ONLY within their juridictions. In fact, some states did have and kept for some time after official state churches within their states.

    How and why the Courts got to the point where Judges MAKE LAW respecting the dis-establishment of theistic religions in favor of atheistic religions is beyond my expertise. But, I think the nation is realizing we’ve taken the wrong track somewhere. Americans are now seeing that Judges have taken too much lawmaking authority upon themselves. Americans have had it with Activist Judges–especially activist Judges like Judge Jones who felt compelled to yell right in his opinion that he is not an active judge.