Friday Fisking – The Fafarman Files #1

This is the first in a series of posts analyzing Larry Fafarman’s 20 criticisms of Judge Jones’ decision in Kitzmiller v. Dover.  It was originally posted at Larry’s blog on June 2, 2006.  I have made some edits.

 (1) For perhaps only the second time in American history (the Selman v. Cobb County evolution-disclaimer textbook sticker case was possibly the first), a judge ruled that something — irreducible complexity in this case — that makes no mention of anything related to religion and that contains no religious symbols constitutes a government endorsement of religion. Whether or not irreducible complexity is bogus science is irrelevant, because there is no constitutional separation of bogus science and state.

Well, I would say that there are at least a few cases where a judge ruled that something making no mention of anything related to religion and that contains no religious symbols constituted a government endorsement of religion. The first that springs to mind is Epperson v. Arkansas, 393 U.S. 97 (1968). The law struck down made no mention of religion, creationism, or God. Rather, the law in question is as follows:

§ 80-1627. — Doctrine of ascent or descent of man from lower order of animals prohibited. — It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational institutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals.

§ 80-1628. — Teaching doctrine or adopting textbook mentioning doctrine — Penalties — Positions to be vacated. — Any teacher or other instructor or textbook commissioner who is found guilty of violation of this act by teaching the theory or doctrine mentioned in section 1 hereof, or by using, or adopting any such textbooks in any such educational institution shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding five hundred dollars, and upon conviction shall vacate the position thus held in any educational institutions of the character above mentioned or any commission of which he may be a member.

The language used clearly indicates that it is the same type of analysis used in what has become the endorsement test. The opinion quotes Abington School District v. Schempp, 374 U.S. 222 (1963):

[W]hat are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.

These are clearly the precursors to the modern definition of the endorsement test – that is, the purpose and effect portions of the Lemon test or the modification advanced by Justice O’Connor. For the purpose of this argument, I am excluding the entanglement test. (The Lemon decision combined two lines of judicial tests of the Establishment Clause – the two endorsement tests, from the line leading to Abington; and the entanglement test, from the line leading to Walz v. Tax Commission, 397 US 664 (1970). Inclusion of the entanglement test would add more cases not mentioning religion, including Lemon itself.

 If, as Larry later attempted to do, we wish to change the argument to “banned” rather than “ruled that” we need look no further than McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (ED Ark. 1982).  Although, like Epperson, McLean predates the endorsement test, the analysis follows the same line of reasoning an endorsement test would follow.  The definition of creation-science in the McLean is as follows (emphasis mine):

 (a) “Creation-science” means the scientific evidences for creation and inferences from those scientific evidences. Creation-science includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth’s geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds.

Irreducible complexity is an example of (2).  Judge Overton ruled in McLean that it failed the Establishment Clause because it was a “contrived dualism.”  Judge Jones ruled that irreducible complexity failed for the same reasons, calling it a “false dichotomy” and relying explicitly on Judge Overton’s ruling.

Also, the Epperson opinion states that leaving out explicit references to religion doesn’t prevent the court from determining that the law or activity in question has underlying religious motivations:

Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee’s reference to “the story of the Divine Creation of man” as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, “denied” the divine creation of man.

The Supreme Court has also ruled that, especially in the case of children, violations of civil rights are not to be tolerated, whether openly or evasively through contrivance or genuine ignorance on the part of the legislature. “We also take note of the Court’s warning that “the constitutional rights of children . . . can neither be nullified openly and directly by [the] state . . . nor nullified indirectly by [it] through evasive schemes . . . whether attempted ‘ingeniously or ingenuously.'” Gilmore v. City of Montgomery, 417 U.S. 556, 568 (1974) (quoting Cooper v. Aaron, 358 U.S. 1, 17 (1958)).” – Adler v. Duval County School Board, 250 F.3d (11th Cir 2001).

I have read many other court decisions that addressed facets of these issues (~50), many of them originating in non-Establishment Clause cases, but later applied to the EC. I will spare the reader a recitation of these quotes in the interest of brevity and to prevent carpal tunnel syndrome on my part. For those interested, start at the various evolution cases and follow the citations to other cases.

The fact is, the courts have consistently determined that opposition to the teaching of evolution is a religious concept because certain religious sects hold it as anathema to their dogma. This opposition may be in the form of outright bans, or by attempts to discredit evolution through disclaimers or alternative theories with no scientific basis. “The Court found that there can be no legitimate state interest in protecting particular religions from scientific views “distasteful to them,” and concluded “that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma,”” – Edwards, quoting Epperson (citations omitted). Therefore, we have a known religious purpose or effect that advances religion.

Bogus science has no legitimate secular purpose, and its primary effect is to discredit legitimate science. Therefore, if no purpose other than promotion of bogus science is given when a religious purpose is known to exist, the law fails the purpose prong. Likewise, if its primary effect is merely to discredit a theory when discrediting that theory advances religion, it fails the effect prong.

Of course, the truth is that irreducible complexity is merely a restatement of a famous religious argument: What good is half an eye?

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