David Opderbeck weighs in with an opinion on the decision in the Kitzmiller v. Dover Area School District case:
This leads to my primary criticism of the Kitzmiller decision. I don’t believe Judge Jones should have ventured a broad definition of “science” in the Kitzmiller case, as though such an exercise necessarily ends the discussion of constitutionality. Under the applicable standards for establishment clause cases, the proper inquiry is into purposes and effects: was the government’s purpose “secular” and was the primary effect of the government’s decision to advance or inhibit religion or to produce an excessive entanglement of government and religion? Whether an idea is labeled “religion” or “science,” in itself, is irrelevant to the constitutional question. “Religion” is a constitutionally proper subject of study in the public schools, provided that the purpose and effect of that study is not sectarian.
Rather than wading into the deep waters of defining “science” over against “religion,” then, Judge Jones should have focused primarily on the purposes of the Dover school board, which clearly were to proselytize for a particular kind of creationism, rather than to explore interdisciplinary approaches to science and religion generally.
I am baffled that anyone who has claimed to have read the decision could possibly apply a clause like “as though such an exercise necessarily ends the discussion of constitutionality” to it. It is manifestly inapplicable to Judge Jones’ decision.
Opderbeck’s primary criticism is much vitiated by what he later endorses as an alternative statement that he would have found acceptable for the decision:
In my view, however, there is a significant qualitative and quantitative difference between giving an issue some consideration and making it the central issue in the case. The court could easily have said something like this, and nothing more than this, on the demarcation issue:
The question of ID theory’s scientific merits, and indeed whether ID theory is properly considered ‘science,’ is hotly disputed by the parties. The court finds, after hearing extensive testimony, that the mainstream scientific community generally does not consider ID theory to be valid science. Combined with the clear overriding religious purposes of the school board members, this finding establishes that there was no valid secular purpose for the school board’s actions and that the proposed curriculum would result in excessive government entanglement with religion.
In this context, the Judge Jones’ effort to define “science” in a broad sense was unnecessary, but not “activist.” In any event, the term “activist judge” generally sheds far more heat than light on the complex nature of the judicial function.
In order to evaluate the defense’s argument that introducing “intelligent design” to students because it was science, Judge Jones had to take up the issue of whether the claim that it was science stood up to scrutiny. So, qualitatively, Opderbeck has no argument: he stipulates above that addressing the “secular purpose” argument was necessary, though he seemingly misses the connection to determining the scientific status of “intelligent design” by saying the discussion of science in the broad sense was unnecessary. One can’t accomplish the one without doing the other, though. Nor was the decision seeking to resolve the “demarcation” question, something that has eluded philosophers of science thus far.
How about the quantitative aspect that remains? One can argue about Opderbeck’s assertion that the “ID is not science” section became the “central” issue; certainly most careful readers of the decision will not find it to be the case. It was the fourth section under consideration of the “endorsement test” and section “r.” under the “purpose inquiry” part of considering the “Lemon test”. It was, though, extensively discussed. Judge Jones had at least two motivations for doing so.
One would be a proximal concern that if the case went before an appeals court, that that court have both the full trial record and the judicial reasoning that set aside the defense’s argument of having a secular purpose in “intelligent design” being science. This is commonly called “appeal-proofing” a decision, and it is a valid endeavor for a judge to engage in it. That the subject happens to offend Opderbeck is not a consideration. Could Judge Jones have responsibly only said what Opderbeck offers above? One would beg to differ; Opderbeck’s formulation of how to deny the defense’s “secular purpose” argument seems to be erroneous. On appeal, Opderbeck’s statement could be attacked as simply being a statement of hearsay and not reflective of the actual trial record, a fault that Judge Jones’ decision does not share.
The second motivation would be to provide a record for other courts that might become involved in similar litigation. This kind of record is best done expansively, laying out the issues with full consideration and clarity. Opderbeck’s preferred text would be next to useless for such a purpose.
But all this pales in comparison to the misdirection that Opderbeck engages in by way of his discussion. Opderbeck introduces his “primary criticism” as being motivated by the general principle that courts should refrain from seeking to determine the content of science courses, that they should limit their “gatekeeping” function to the aspect of determining what evidence is relevant and what testimony can be considered expert and entered into the trial record, and in determining the purpose and effects of governmental agents. But Judge Jones clearly is making inquiry into the nature of “intelligent design” precisely in service of the limited goals Opderbeck himself endorses, and not the one that Opderbeck claims is the basis for his “primary criticism”.
In summary, Opderbeck’s “primary criticism” of the Kitzmiller decision seems to be confused as to why the issue was important, arguably wrong concerning the claim that his concern was the “central issue” of the decision, and unappreciative of the purposes for the length of the decision. Are we really sure that the text attributed to Opderbeck was really written by the David Opderbeck who is a professor of law, and not somebody seeking to make him look bad?
Update: There is a next thread where I respond to the latest comment entered in this thread by David Opderbeck.