Kitzmiller and the Need to Adjudicate "Science"

I hate to post again about the Kitzmiller case, as I don’t want to become the “intelligent design law blog.” But, I feel it’s necessary to correct some misinformation that’s being spread about the case on some advocacy sites like Panda’s Thumb. The misinformation is that it was “essential” for Judge Jones to provide a detailed explanation of what constitutes “science” in order to decide the establishment clause issues in the case. Judge Jones made reference to this on pages 63-64 of the Opinion where he states:

…we will offer our conclusions on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred, but also in the hope that we it prevent the obvious waste of judicial and other resources which would be occasioned by a second trial involving the precise question which is before us.”

Some uninformed commentators, including those at Panda’s Thumb, have concluded from this comment that case law or practice in the Third Circuit (the federal court circuit in which the Pennsylvania federal trial courts sit) in fact compelled Judge Jones to examine this issue in detail. This is patently wrong.

First, let me offer a brief qualification to my analysis. I do not think Judge Jones reached the wrong result in this case. I think he correctly found, under the existing establishment clause jurisprudence, that the Dover school board’s policy had a primarily religious purpose. Therefore, I think it’s incorrect to call Judge Jones an “activist” judge, and I would call on those religious and conservative organizations that have been doing so to stop. Activist judges are those that make up their own rules; Judge Jones’s result followed the rules he was given. Nor would I question Judge Jones’ personal integrity or qualifications. I don’t know this Judge personally and can’t speak about him on that front. I also think, as I’ve said many times before, that the Dover school board’s actions were largely inappropriate and unwise.

That said, there is no way a reasonable reading of the establishment clause jurisprudence, or a basic understanding of judicial practice in the federal district courts, could lead to a conclusion that Judge Jones’ mini-treatise on “science” was “essential” to reach a sound, virtually bullet-proof conclusion under the establishment clause.

First, as a procedural matter, let’s consider how trial courts typically deliver opinions after bench trials. I know about this first-hand because I was a litigator at a large, influential New Jersey law firm for thirteen years, where I eventually was elected partner before leaving to teach at a New Jersey law school. I’ve litigated hundreds of cases in the federal courts of New Jersey, which also is in the Third Circuit, and I’ve handled several appeals before the Third Circuit.

I can say without qualification that trial courts are not required to write lengthy, publication-quality opinions after each case is decided. Indeed, they don’t often do so. Opinions in many cases are delivered orally from the bench, are incorporated into relatively brief memorandum orders, or are delivered as simpler “findings of fact and conclusions of law.” Even if the court felt it necessary to address arguments concerning ID as “science,” it could have done so in less than a paragraph, for example, by stating that “there is considerable debate about the status of ID as ‘science’, and the court cannot conclude that any purported scientific basis for ID overrides the clearly religious message the Dover school board intended to send and in fact sent to the community.” Any notion that a lengthier written opinion was required by Third Circuit practice is false.

Nor was it necessary for the court to address the question of “science” merely because it was raised by the parties or the subject of an amicus brief by the Discovery Institute. First, the court rejected the Discovery Institute’s amicus brief. Regardless, a court is not compelled to address in detail every argument the parties raise. Conscientious litigators often cover every concieveable basis for a ruling, but courts almost never directly address every issue a party raises. I’ve been in many, many cases in which a court has said “I have reviewed the other arguments made by the parties and find they are without merit.” Period. If trial judges did otherwise, they would never sleep and would dispose of maybe two cases a year. It doesn’t work that way.

Now on to the substantive law. The Kitzmiller court applied two related establishment clause tests to the Dover board’s policies. The first, which it called the “endorsement” test, asks “would a reasonable, informed observer, i.e., one familiar with the history and context ··· perceive the challenged government action as endorsing religion?” Freethought Society of of Greater Philadelphia v. Chester County, 334 F.3d 247, 250 (3d Cir. 2003).

The “endorsement” test is a condensation of the Supreme Court’s earlier Lemon v. Kurtzman test. Under Lemon, courts are to inquire “(1) whether the government practice had a secular purpose; (2) whether its principal or primary effect advanced or inhibited religion; and (3) whether it created an excessive entanglement of the government with religion.” Id. at 256 (citing Lemon). The “endorsement” test effectively “collapse[s] the ‘purpose’ and ‘effect’ prongs [of the Lemon test]into a single inquiry.” Id. at 250.

The second test the court applied was the Lemon test itself. It is something of a quirk in Third Circuit law that a trial court would apply the endorsement test separately from the Lemon test. Judge Jones believed he should focus on the “purpose” and “entaglement” prongs of the Lemon test separately from the endorsement test. As the Third Circuit recognized in Freethought, the inquiry under the endorsement test essentially is a condensation of two elements of the Lemon test. Thus, the two tests substantially overlap.

Whatever test the court chose to apply, it was not deciding this case in a vacuum. In particular, the Supreme Court had addressed a “creation science” statute years ago in Edwards v. Aguilard. The Supreme Court in Aguilard was concerned primararily with whether the “creation science” statue at issue had a valid secular purpose under the establishment clause. The Supreme Court decided this issue without deciding whether “creation science” was “science,” much less giving a mini-treatise on what “science” generally means. Instead, the Aguilard Court relied on the legislative history and public statements made by the “creation science” law’s proponents to find that the law had a religious purpose. Judge Jones discussed the Aguilard case as well as other pertinent “creation science” cases.

After determining what law applies, Judge Jones reviewed the facts concerning the adoption of Dover’s ID / evolution policy. The court found that Dover’s policy was essentially a repackaging of an earlier, failed “creation science” policy and that a reasonable observer in the Dover school system and community would understand that the policy would constitute and endorsement of the religious viewpoints of some members of the school board. He buttressed these findings with numerous citations to the record concerning statements made by the school board members, statements made in the local press, and the like. He made these extensive findings before discussing anything about whether ID is “science.”

Only after making these findings concerning of the perception of the school board’s policy in the local community did Judge Jones move on to the issue of whether ID is “science.” Although the Judge mentioned that his findings regarding whether ID is “science” were “essential” to his holding under the establishment clause, he never expained why.

In fact, it is clear that the court’s previous findings about what an “ordinary observer” would have perceived concerning the policy were more than adequate to sustain its ruling under both the “endorsement” and Lemon tests. The court made no serious effort to relate its findings concerning ID and “science” to the endorsement test’s “reasonable observer” standard, nor could it have done so. The “reasonable observer” is a reasonably informed person within the community, not a member of a specialized guild such as professional scientists. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 115 S.Ct. 2440 (1995)(“the endorsement test creates a more collective standard to gauge “the ‘objective’ meaning of the [government’s] statement in the community.” )(quoted in Freethought at p. 259). The “endorsement” test seeks to determine the “effect of the display on the reasonable observer, inquiring whether the reasonable observer would perceive it as an endorsement of religion.” Freethought, 334 F.3d at 261 (emphasis in original). Obviously, most of the parents, students, and other citizens affected by the Dover board’s policy were not professional scientists. The court’s discussion of how ID is viewed within the scientific community therfore, far from being “essential,” was irrelvant to the “endorsement” inquiry under the establishment clause.

Instead of its foray into the history and philosophy of science, the court could have stopped after reaching its findings, based on its extensive review of the record, that the Dover board’s ID policy as a transparent extension of a “creation science” policy and therefore an endorsement of religion. This conclusion would have been consistent with Aguilard, would have satisied the Third Circuit’s establishment clause jurisprudence, and would have been essentially bullet-proof on appeal.

It is clear, then, that the court’s holding about ID as “science” was in no way “essential” to the establishment clause issue it was charged with deciding. The alternative motive the court itself supplied for its romp through the meaning of “science” is far more telling: Judge Jones wanted to make an example of the Dover school board.

Reasonable people can differ about whether courts deciding individual cases and controversies should use their bully pulpits to set such examples. A reasonable person also could ask whether Judge Jones let his anger at some of the apparently disingenuous witnesses get the best of him. However, no reasonable person who is knowledgeable about how trial courts work or about the relevant establishment clause precedents in both the Third Circuit and Supeme Court could conclude that it was truly “essential” for Judge Jones to make his extensive findings about ID as “science.”