The York Daily Record, a newspaper near Dover, Pennsylvania, has been running a series of articles on the tenth anniversary of the Dover ruling. In one of those articles, Judge John Jones — who ruled against intelligent design in the Kitzmiller v. Dover case — does a Q&A, In the exchange, he takes on unspecified critics of his ruling regarding the legal tests he used and his reliance on precedent. Here’s what he says:
What are some of the other misconceptions with the ruling?
I would say the main one is the role of precedent. In the Kitzmiller case, there’s a very clear line of cases from higher courts, including the Supreme Court of the United States, that set out tests that we use in deciding whether a particular policy violates the Establishment Clause in the First Amendment. Those are etched in stone.
Now, people may disagree with those tests, but I have to, had to, as a federal judge, apply them. I have frequently said since the Kitzmiller case that I think any federal judge in the United States would have decided it exactly the same way that I did by applying those tests.
Now, they may have written the opinion a little bit differently, but the result would have been the same. That is, that the board, at that time, had a clear religious motivation, and violated the Establishment Clause in the First Amendment by its policy introducing intelligent design into the curriculum. The misconception arises because, frankly, people either deliberately — or from a lack of understanding — think that we make this stuff up as we go along, and that we’re not bound to apply these precedents, these mandates, from higher courts. And that’s exactly what I did in deciding the case.
It’s not exactly clear who the “people” are that Judge Jones has in mind who “disagree” with the legal tests he used in his ruling. But it’s no secret that his most vocal critics have been, well, right here at Discovery Institute.
What the Critics Really Said
In 2007 David DeWolf, John West, and I co-wrote a technical legal article in Montana Law Review, “Intelligent Design will Survive Kitzmiller v. Dover, critiquing the ruling. For the record, just as we predicted, ID has survived just fine. But did we have the “misconception” that Judge Jones attributes to critics? That is, did we claim Judge Jones somehow applied the wrong legal tests in his ruling? Not in the least.
When Judge Jones mentions “precedents” and “tests” that he’s bound to follow, he’s primarily talking about the Lemon test. That is the main judicial test used by courts in determining whether a government policy satisfies the Establishment Clause. It’s a three-part test, and each part (or “prong”) must be passed successfully if a government policy is to be constitutional. Here it is, as the U.S. Supreme Court originally formulated it:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion. (Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) (internal citations and quotations omitted)
Here are the three prongs, slightly paraphrased:
- Prong 1 (the “purpose” prong): The policy must have a secular legislative purpose.
- Prong 2 (the “effect” prong): The principal or primary effect of a policy must neither advance nor inhibit religion.
- Prong 3 (the “entanglement” prong): The policy must not foster excessive government entanglement with religion.
Law students studying for con-law tests or the bar exam have famously memorized the three prongs of the Lemon test with the acronym “SEX” — “S” for Secular purpose, “E” for the no primary religious Effect, and “X” for no eXcessive entanglement.
Now that you’ve got that down, did Judge Jones misuse precedent by employing the Lemon test? Not at all! The problem was that Judge Jones failed to follow precedent in how he did so. Judge Jones properly found clear evidence that the Dover Area School Board acted with a religious purpose, and that religious purpose was enough to invalidate Dover’s ID policy under the “purpose” prong. That was enough to settle the case, and according to principles of judicial economy laid down by the Supreme Court in precedential causes such as Edwards v. Aguillard and Village of Euclid v. Ambler Realty Co., Judge Jones should have stopped his Lemon analysis right there. But he didn’t. Instead, he went into an extensive inquiry on the general question of whether teaching ID violates the “effect” prong under other circumstances (even where there might have been a legitimate secular purpose for a policy).
Before going further, let’s ask if we ever criticized Judge Jones for the mere fact that he used the Lemon test, as he seems to suggest his critics have done. The answer is no. You can see this in what we wrote in our amicus brief submitted to himduring the Dover trial:
In this case, plaintiffs have made two main types of claims. First, they have made fact-based claims that the specific policy adopted by the Dover Area School Board (“DASB”) violates the first and second prongs of the Lemon test. Second, they claim that the theory of intelligent design is an “inherently religious concept” such that teaching students about it would necessarily violate Lemon‘s first and second prongs under any circumstances. Amicus vigorously disputes this second, more general claim, but takes no position on the first.
Amicus takes no position on the first set of claims because Amicus lacks access to the factual record regarding the motives and actions of the DASB. Amicus disputes the second, more general claim, because it ignores the many secular purposes under which the theory of intelligent design could be taught, as well as the likely primary effect of teaching about intelligent design–to advance science education.
First, you can see that we were assuming that Judge Jones would use the Lemon test. We never criticized him for the mere fact that he used the Lemon test, and we never discouraged him from doing so.
Second, you see that we weren’t even necessarily urging Judge Jones not to rule against the Dover school board’s specific ID policy. Thus, we wrote that we “tak[e] no position on” the plaintiff’s claim that “the specific policy adopted by the Dover Area School Board (“DASB”) violates the first and second prongs of the Lemon test.” Our interest in the case was intelligent design, not the actions of a school board that wouldn’t listen to us and adopted a policy we didn’t support.
As our brief states, we didn’t know all the facts. But we had heard enough evidence from media reports which suggested that some Dover school board members had expressed clear religious motives regarding their policy, and this gave us great pause in defending or attacking the legality of their specific policy — a policy we didn’t even support. That was someone else’s job. We wrote in that same brief:
Yet whatever the motivation of the individual school board members in this case, there are many secular purposes under which the theory of intelligent design could be taught, and that these purposes could predominate in a policy that permits teaching about intelligent design.
Again, it wasn’t our place to defend or attack the Dover School Board’s motives at that point. But we were aware of public statements by Dover School Board members that Judge Jones later cited in the ruling, like one who said, “Two thousand years ago someone died on a cross. Can’t someone take a stand for him?” That certainly sounded like a religious motive, and we weren’t going to defend Dover’s specific policy. Amongst ourselves, we anticipated — correctly — that Judge Jones would strike down Dover’s policy under the “purpose” prong of the Lemon test.
In the end, we were right. Judge Jones did apply the Lemon test to strike down Dover’s ID policy and he did find that Dover’s policy was adopted under unconstitutional religious motives. Did we ever critique Judge Jones for using the Lemon test? No, we didn’t. In fact, after the ruling we never critiqued Judge Jones for finding that Dover’s policy was unconstitutional under the first prong of the Lemon test due to the religious motives expressed by Dover School Bboard members. As we wrote in our Montana Law Review article:
When the testimony at trial revealed the religious motives and questionable conduct of the individual school board members and the poor impression the board members had made upon Judge Jones, it became increasingly clear that the school board would lose. … Judge Jones had no trouble finding extensive and unambiguous evidence for the religious motives of the Dover Area School Board.
For the moment, my point is that we never criticized Judge for finding that Dover’s policy failed the first prong of the Lemon test due to religious motives among members of the Dover school board. If Judge Jones means to suggest that we criticized him for using the Lemon test, or for striking down Dover’s ID policy because of the religious motives of the Dover School Board Members, then that’s simply wrong. We never criticized him for that, and we have always believed he correctly used precedent in making those findings.
So Where Did Judge Jones Go Wrong?
We criticized Judge Jones because he wrongly applied precedent from the highest court in the U.S. — the Supreme Court — about how a court should treat a case after finding evidence of a religious purpose. As we wrote in our Montana Law Review article:
Under the disjunctive Lemon test,45 all that was necessary to determine that an Establishment Clause violation had occurred was to find that the Dover school board members had predominantly religious motivations for enacting their ID policy.46 Longstanding U.S. Supreme Court precedent suggests that in resolving constitutional issues, a narrow holding (such as a finding that the school board had religious motives in adopting the policy) is preferable to a broad holding (concerning the definition of science, the motives of the “IDM,” or whether ID is science); in Village of Euclid v. Ambler Realty Co.,47 the Supreme Court pointed out that it is the “traditional policy of this Court” to decide only the legal question most directly at issue, not all possible legal questions raised by a particular controversy:
In the realm of constitutional law, especially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted.48
The Supreme Court employed precisely this approach when dealing with the teaching of biological origins. The Court did not analyze the effect prong of the Lemon test when it struck down Louisiana’s Balanced Treatment for Creation-Science and Evolution-Science Act.49 “[B]ecause the primary purpose of the Creationism Act [was] to endorse a particular religious doctrine,”50 the Court chose to devote no analysis under Lemon‘s effect prong. The Court found that the district court “properly concluded that a Monday-morning ‘battle of the experts’ over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law.”51 In other words, judicial findings and inquiries on the scientific status of the theory in question and the effect of teaching it are neither necessary nor appropriate if a court finds that the acting government agents had predominantly religious motivations, for “[i]f the law was enacted for the purpose of endorsing religion, ‘no consideration of the second or third criteria [of Lemon] is necessary.'”52
Judge Jones had no trouble finding extensive and unambiguous evidence for the religious motives of the Dover Area School Board, 53 which would have disposed of the case under the Ambler Realty principle. Instead, he tried to settle an array of the broadest questions possible, including the proper definition of science,54 the motives of the “IDM,” 55 the compatibility of Darwinian theory with religion,56 and even obscure scientific minutiae such as whether the Type-III Secretory System could be an evolutionary precursor to the bacterial flagellum,57 and whether inductive reasoning provides a quantitative argument for design.58
That passage explains our precise critique of Judge Jones and his reliance on precedent: Once he found evidence that the Dover School Board acted for a religious purpose, precedent from higher courts states that he should end his analysis under the Lemon test. This precedent comes from the Supreme Court in Edwards v. Aguillard, a case that is directly relevant to Kitzmiller v. Dover because it dealt with the teaching of an alternative to evolution. Indeed, this is a case that Judge Jones relied upon extensively in his ruling. As noted, in that case the Court explained that “[i]f the law was enacted for the purpose of endorsing religion, no consideration of the second or third criteria [of Lemon] is necessary.”
But Judge Jones didn’t follow this directly applicable precedent. Instead, after finding that Dover’s ID policy failed the “purpose prong,” he went into an extensive “effect prong” inquiry of whether teaching ID as general matter would always have a primary effect that advances religion — a question quite separate from Dover’s specific ID policy, and beyond any analysis Supreme Court precedent instructed him to do. In fact, Supreme Court precedent instructed Judge Jones not to do this analysis. But he violated this precedent.
Aside from the fact that Judge Jones shouldn’t have even done an effect prong analysis of whether teaching ID establishes religion, his analysis was itself extremely flawed. We’ve elaborated on that before. In fact, his analysis was so flawed that even a leading anti-ID legal scholar, Jay Wexler, attacked it as follows:
The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous both to science and to freedom of religion.
(Jay D. Wexler, “Kitzmiller and the ‘Is It Science?’ Question,” 5 First Amendment Law Review 90, 93 (2006) (emphasis added).)
In his interview with the York Daily Record, Judge Jones states: “People either deliberately — or from a lack of understanding — think that we make this stuff up as we go along, and that we’re not bound to apply these precedents, these mandates, from higher courts.”
Judge Jones’s comment is so vague that it’s not clear exactly who it is he’s criticizing or what he’s criticizing them for. But this much is clear: We didn’t criticize Judge Jones for using the Lemon test, and we didn’t criticize him for striking down Dover’s ID policy on the grounds that the Dover school board members had religious motives. If he’s suggesting we did that, then he apparently misunderstands our criticisms.
Our actual criticism is much more forceful: Judge Jones directly ignored the most relevant precedent from the U.S. Supreme Court — precedent directly applicable to the Dover case and precedent that he himself cited extensively — which should have instructed him not to undertake an extensive “effect prong” analysis about the general constitutionality of teaching ID. The result was a highly inaccurate analysis, which as Jay Wexler rightly stated, has harmed both the freedom of science and freedom of religion.
[46.] “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster ‘an excessive government entanglement with religion.'” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (citing Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968)).
[47.] Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
[48.] Id. at 397; Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. Colo. L. Rev. 1139, 1152-53 (2002) (stating that “[a] court that tends to announce sweeping rules — thereby leaving less leeway for future judicial decisions — is refusing to defer to future courts in much the same way that courts departing from precedent have refused to defer to past tribunals”).
[49.] La. Stat. Ann. � 17:286.1 (2006).
[50.] Edwards v. Aguillard, 482 U.S. 578, 594 (1987).
[51.] Id. at 596.
[52.] Id. at 585 (citing Wallace v. Jaffree, 472 U.S. 38, 56 (1985)).
[53.] Kitzmiller v. Dover, 400 F. Supp. 2d 707, 746-63 (M.D. Pa. 2005).
[54.] Id. at 735.
[55.] Id. at 720, 737.
[56.] Id. at 765.
[57.] Id. at 739, 740.
[58.] Id. at 741-42.
Image: Ronald Reagan Federal Building and Courthouse, Harrisburg, PA, by Pubdog [Public domain], via Wikimedia Commons.