What Mr. Opderbeck also ignores is the fact that both sides in the case requested that he rule on whether ID was science. Judge Jones has made that clear in several presentations he has given since the trial. When both sides in a legal dispute request that the judge make a ruling on a particular legal point, the judge usually does so.

ID theorists always have the option of doing real science and presenting it to scientists, and being open to their review; that would be the honest, “straight and narrow” way of getting ID taught in the public schools.

He is also ignoring the fact that the judge (as is the case with a Daubert determination) treated the question of whether ID is science as a factual question based on the testimony before him (\”Expert testimomy reveals …\”, p.64, for example). As with a Daubert determination, ID advocates are, in an appropriate case, free to come back and try again to show that ID is science. Therefore, Judge Jones was not \”demarking\” science, he was giving his findings based on the evidence presented, always an appropriate thing for a judge to do.

The plaintiffs alleged that teaching ID in a science class violated the 1st amendment of the Constitution. Their argument was that ID is both religious and not science. Specifically that ID is creationism relabeled*. That ID has no secular purpose in the science classroom – because it isn’t science. And that allowing ID to be taught would have the effect of promoting a specific religion (i.e. sectarian).

The defense alleged that ID WAS science, wasn’t creationism, served a solely secular purpose (because it is science therefore is appropriate in a science curriculum)

IANAL but could you tell me HOW the judge could rule either way without:
1) addressing if ID was religious or not (by applying the “Lemon test”)
2) addressing if ID is science or not (which requires a definition of what is/is not science relative to THIS ruling)
3) noting that under the accepted definition of science – science and the supernatural are mutually exclusive

It seems that your assertion is that Judge Jones did not need to define science in order to rule if ID is or is not science, I am not convinced by your arguments – If I assert that “Cyan is not red – it is blue” how can one determine if my assertion is true unless we agree on what is “red”, “blue” and “cyan”?

*creationism had already been disallowed is public school science curricula by rulings of the SCOTUS because teaching creationism endorses religion/ specific sectarian religious concept).

You can’t have it both ways. If you think the demarcation of “science” was “key” in the “sense” of being necessary to evaluate the “secular purpose” of the School Board’s policy, then it was “key.” Key is key. It seems pointless for us to continue arguing about whether the demarcation question was “key” or “central” to the opinion. Obviously, it was, at least for the “sense” that you advance here.

In this regard, the “appeal proofing” argument really doesn’t work, for three reasons.

First, as you admit above, the “science” demarcation part of the opinion does some “key” work under the Judge’s construction of the establishment clause issue. This is clearly more than appeal proofing.

Second, federal judges in particular have significant control over what issues get tried. The Judge could have excised much of the material relating to the “science” demarcation issue at various stages of the pretrial proceedings, but didn’t … because he apparently believed it was key to the proceedings. You seem to think that a Judge must passively hear and decide everything the parties throw at him or her, but that simply is not the case.

Third, even when a trial court allows evidence at trial on an issue, the court is not compelled to deal with it at length in a written opinion. It is not reversible error in itself to do this. Many, many, many times I’ve seen courts slap down with the back of a hand arguments made at length by the parties, without any negative repercussions on appeal. The briefer statement I offered in my Science & Sacred post, in fact, would have served this purpose (and the appeal proofing purpose) well.

Now, as to the central point of my Science & Sacred piece: my primary concern is about which institutions in our society should make demarcation decisions, and for which purposes. Courts have to make demarcation decisions about “science” for evidentiary purposes (the Daubert standard), but that it is a narrow purpose tailored specifically to the unique role courts play. Broader demarcation decisions should be left to other institutions and to broader public debate.

On this last point, I’d suggest you check out some of the resources on science and the law that I list in my Science & Sacred post, none of which have anything specifically to do with ID. The literature on this is legion, there are numerous areas of public policy that it intersects, and it is by no means confined to reactionary claims of “judicial activism.” It seems to me that a narrow focus on the ID question is crabbing your understanding of the broader policy issues at play.

I think that you can be justly proud of leading to one of Michael Behe’s least sterling moments as he adduced support for IDC from science fiction movies.

How many days were you able to observe the trial?

I was so jealous of you and Nick actually getting to be there. I made due with the daily transcripts. My favorite part started with “Q. Let’s discuss archaeology a little bit more. Matt, if you could pull up Exhibit 722? May I approach, Your Honor?”