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The Separation of Powers in Establishment Jurisprudence: Arnold H. Loewy Gets What Judge Jones Didn’t

As I recently noted, anti-ID legal scholar Jay Wexler believes that Judge Jones went too far by trying to address whether ID is science. Continuing this line of argument, self-described “liberal First Amendment theorist” Arnold H. Loewy makes a point that Judge Jones missed: “it is not the Court’s job to distinguish good science from bad in the realm of education.” (pg. 85) Our form of government requires a separation of powers. During lawsuits alleging violations of the Establishment Clause in school curricula, courts are allowed to determine if the curriculum establishes religion, but that’s it. Yet Judge Jones found that ID’s claims have allegedly “been refuted by the scientific community” as he sought to address scientific questions about whether the flagellum evolved from a type three secretory system or whether our adaptive immune system evolved from a more primitive form. These are interesting questions, but regardless of whether you agree with Judge Jones’ answers, they are questions about good science vs. bad science in a curriculum, NOT about establishment of religion. Whether ID’s claims constitute good science or bad science would be a question for the legislative branch to address; addressing such matters “is not the Court’s job,” nor is it even the Court’s right. At least one appellate court dealing with establishment concerns in a public school curriculum grasped this crucial distinction, declaring: “[T]he wisdom of an educational policy or its efficiency from an educational point of view is not germane to the constitutional issue of whether that policy violates the establishment clause.” (Smith v. Bd. of Sch. Commr. of Mobile Co., 827 F.2d 684, 694 (11th Cir. 1987).) If only Judge Jones had recognized that point.


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



Arnold H. Loewy