Opderbeck and Dover, Round 3

This is a reply to a comment by David Opderbeck in this thread. Since David has consistently accused me of misunderstanding, I’m going to pull in a number of sources to demonstrate that such is not the case. So I’ll tag quotes as follows: [DO S&S 1] for David’s first “Science and the Sacred” post on the topic, [DO S&S 2] for his second post, [DO Aus 1] for David’s first comment here, [DO Aus 2] for his second comment here, [DO Aus 3] for his third, and [DO Aus 4] for his most recent comment here.

[DO Aus 4]Wesley, you are again contradicting yourself, and again missing the point of my first two pieces on Science & Sacred.


You seem to be getting desperate to find some way to be dismissive of my commentary. Not only was I consistent before, and explained why, but I have given you no reason to claim logical error on my part this time, either. In fact, I have pointed out logical flaw after logical flaw on your part, and you seem to take no notice of that.

Let’s review those first two pieces that you erroneously claim I’m misunderstanding.

Paragraph 1 from the first piece goes like this:

[DO S&S 1]On December, 2005, Judge John E. Jones, III (left) issued his opinion in the now-infamous Kitzmiller v. Dover Area School District intelligent design case. Like many thoughtful evangelical Christians at the time, I was impressed with intelligent design theory. I had read many of the ID movement’s foundational texts, and felt confident that ID offered an intellectually and theological satisfying alternative to the extremes of young earth creationism and atheistic Darwinism. Shortly after the Kitzmiller decision was issued, I blogged and wrote publicly about Judge Jones’ opinion, which I thought was largely mistaken.

I still think Judge Jones’ opinion in Kitzmiller missed the mark in some important ways, even though I think (and have always thought) the end result was correct. Moreover, I remain impressed with the energy and intelligence of the ID movement’s thought leaders. Scholars such as Bill Dembski and Mike Behe have made some interesting arguments about epistemology, divine action, and causation. However, when I dove into the broader ID discussion after the Kitzmiller case, I came to believe that many aspects of the ID movement are not as helpful as I had first thought – and, indeed, that ID rhetoric is often used to hinder positive interaction between the truths of the Christian faith and truths learned through the natural sciences.

This says that your opinion of Jones’ decision was negative. Paragraph 2 explains how your opinion changed somewhat as you examined the “broader” discussion, but that your opinion was that the Kitzmiller decision still was flawed. You reviewed some of the legal history of the antievolution movement, and gave your opinion that “intelligent design” has been misused by “the Church”. Piece 1, though, never got around to an argument about any of these things. And it still says that the Scopes trial occurred in 1926, when I provided the actual year of 1925 for you back on the 1st of December. There’s some pretty questionable stuff in there besides that (Behe and Dembski???), but given that it was all cast as opinion, it doesn’t seem worth a digression.

Now let’s turn to the second piece.

[DO S&S 2]Supporters of Judge Jones’ approach in the Kitzmiller case suggest that a similar gatekeeping function is important with respect to public education. Without some demarcation of what can be taught as “science” in the public schools, aren’t we opening the floodgates to the teaching of all sorts of pseudo-science, such as astrology and young earth creationism? I think this is a valid concern. For this and other reasons, I personally don’t agree with the “teach the controversy” approach promoted by many ID advocates. If I were to serve on my local school board, I would not vote in favor of introducing ID materials into the science curriculum, primarily because I don’t believe the ID program has generated sufficient results to reach the public schools. Like the courts, the public schools lack the time and resources to address views that fall far outside the scientific mainstream.

I’ve said before that Jones’ approach is not about gatekeeping the science curriculum. You just keep re-asserting that it is without effective support. This is an error on your part, and is a part of your mistaken claims made against my arguments. It is an error that drives the remainder of your piece as well.

I understand your S&S pieces just fine. I continue to think that they do you no credit; quite the contrary.

Now back to your most recent comment.

[DO Aus 4]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.

There is a point, though. It has to do with you producing some support for your claim:

[DO S&S 2]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.

My sense of “key” is any argument that could have caused a higher court to overturn the decision, which means that a great many “key” arguments may exist in a decision. This is quite readily distinguishable from your sense of “the central”, of which there can be only one such issue in the decision. I think I’ve done a good job of arguing that what you asserted was the single most important argument in the decision is, instead, but one of many comparably important considerations. And, of course, that you have mistaken the nature of that argument.

And, as I described at great length last time and have consistently said, I do not agree that creating a “demarcation” criterion was the intent of decision. Please stop ascribing that view to me. Judge Jones applied a definition of science from a source stipulated as authoritative by both the defense and the plaintiffs, which is far, far different from seeking to establish a general demarcation criterion. I note that you do not even attempt to support your claim, even though I told you what to look for if Jones had actually been doing something toward finding a demarcation criterion.


[DO Aus 4]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.

Is that your final answer?

That’s absurd.

Remember my connotation of “key” being an argument that if mishandled or unaddressed by the judge could result in overturning the case on appeal? Do you really want to argue that refusing to drop out explication of an argument because its absence could cause a higher court to overturn a decision is not part of appeal-proofing?

[DO Aus 4]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.

First, you shouldn’t have used “second” to introduce this paragraph, since you are no longer discussing appeal-proofing.

Second, you have strayed into inconsistency with this objection. It goes counter with what you told us previously:

[DO S&S 2]The looming presence of this question is one of the key reasons I don’t believe Judge Jones played the role of “activist judge” in Kitzmiller, even though I am critical of the opinion. The question whether ID, like “creation science,” is inherently religiously motivated, is a live concern, and was extensively briefed and argued to the court by both sides. In order to address the question of religious motivation, the court could not have avoided some consideration of the essential nature of ID theory.

You can’t have it both ways, David. Either the court could have avoided “some consideration” of the issue, or not, but you don’t get to pick which one happens to be convenient to your argument moment-by-moment.

Third, I’m quite aware of what latitude a trial judge has in determining what becomes admissible. I was involved in the plaintiffs’ pre-trial strategy formation concerning exactly that point in the case in question. That consideration, though, is conspicuous by its absence in your two S&S pieces, where you couch your opinion in terms of asserted but unsubstantiated faults in the decision, and not in procedural concerns previous to the decision. Did you overlook that before, or are you just flailing? My opinion leans to the latter.


[DO Aus 4]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.

Again, you have mislabeled your introductory word, since you once again are dismissing and not addressing the appeal-proofing argument. Argument by anecdote is widely considered to be weak. I can’t speak to the numbers of terse dismissive or spotty decisions that get a pass from higher courts relative to the ones that get overturned or remanded by those higher courts (e.g., Selman v. Cobb County), and I don’t think that you are in a position to make a statistical argument, either. Given the raw page number fiasco earlier in our discussion, I’d say I’m well justified in that. Nor does a personal opinion of how well your offered alternative might have held up to hypothetical review do much for anyone looking for an objective reason to prefer your opinion. You have to argue that the mere existence of airy dismissal in some decision means that airy dismissal should be what judges use generally or exclusively to even come close to having a point. I just have to point out that completeness of argumentation is not a fault to completely invalidate your stance that an error lurks in the Kitzmiller decision because of length of consideration, and I have. The thing that you should be looking for is a reason within the practice of law for a trial judge to high-handedly dismiss an argument that comprised a significant proportion of the testimony and evidence heard in a case. Given that the arguments were admitted, what reason in law would a judge have to prefer an uninformative dismissal of the argument to a full explication of why the judge decided on those arguments the way he did? I’m still waiting to hear one.

What I and I think others would want to see is that you show clearly that airy dismissal would have been better legal practice for a judge to engage in than completely addressing the arguments before the court. I haven’t seen anything from you that comes close to that.

Of course, I’ve said about the same thing before without an indication that you are taking my point.


[DO Aus 4]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.

Assuming that the second S&S piece is referenced, let’s have another look at that:

[DO S&S 2]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.

You specifically note that figuring out whether a secular purpose exists is a proper avenue of inquiry for the courts. You and I disagree, and have done so throughout, over your unconvincing assertion that the Kitzmiller decision is an example of an improper and extensive exploration of “demarcation” generally rather than secular purpose claims in particular. You continue to appear to be confused over what “demarcation” means for this discussion despite my having gone on at considerable length to fill that in for you. I am consistent in part because I have always said that assertion of yours was wrong. Acting as if I had stipulated it at any point is poor form.


[DO Aus 4]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’ll note that Cranor’s book seems to indicate that the Daubert criterion is mostly a bar to plaintiffs being allowed to make their case, something that obviously is not applicable to your chosen example.

It seems to me that you have a poor track record of trying to say what I do or don’t understand, as poor as being skunked over and over on that score can get. We agree that Judge Jone is not guilty of “judicial activism” and we have not argued that point. The “broader policy issue” in your S&S 2 piece is merely that courts should limit their inquiry into figuring out intent and purpose, and not offer to get involved in curriculum content decisions generally. But you chose to base your opinion on a particular example, and it was obvious to me that your chosen example failed to support your statement of general concern. Maybe there is a judicial example of somebody overstepping the line and seeking to establish a “demarcation” criterion in general; I’m pointing out, once again, that the Kitzmiller v. DASD decision written by Judge John E. Jones III is not it. Try again.

As I pointed out before, you are urging jurists to take extra-legal considerations into account and to alter their decisions on that basis. (Or, if we credit your turnabout, urging them to change what they consider admissible to a trial on that extra-legal basis.) You fault in particular the 2005 decision in Kitzmiller v. DASD by Judge Jones. If your assertion had merit, it should be robust enough to charitably consider the procedures that may legitimately be used by competent judges, including that of rendering a decision that pretty completely lays out the grounds for that decision. However, it is plainly obvious that charity is fatal to your claims; if we grant that a judge may reasonably respond at goodly length to arguments that occupied a significant proportion of a trial, there is nothing left to support your assertion because of the length of the section that causes you offense. When we examine the content of it, as I’ve gone over in previous responses, there is but one sentence you’ve noted as possibly problematic, and if we note that it directly addresses a possible way that secular purpose could be claimed, it, too, fails to support your assertions because there was a good legal reason that you yourself have stipulated that it should be addressed. Given that neither length nor content provide you a basis for continuing in citing the Kitzmiller decision as supporting your fears, I would hope that you would issue an apology to Judge Jones and look for something that actually provides the example you are questing for.

Now, there is another issue that you could take up, which would be whether the “is ID science” section was mistaken given the evidence and testimony taken in the case. So far, your argument has stopped short of trying to do such a thing, and merely asserted without effective substantiation that it was somehow wrong for Judge Jones to do anything but in the most cursory way possible assert that he found the defense had no secular purpose for their actions. I don’t blame you for not trying that; the defense experts turned out to make the plaintiffs’ case quite convincingly. “Intelligent design” is not science, nor is it going to turn into science someday. It is just yet another label slapped on a subset of the same moldy old religious antievolution argumentation that got recognized as such in previous court cases. ID’s purpose is simply to evade those legal precedents, nothing more.

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Data scientist in real estate and econometrics. Blogger. Speaker. Photographer. Husband. Christian. Activist.

One thought on “Opderbeck and Dover, Round 3

  • 2009/12/12 at 2:32 am


    I’m trying to reconcile your repeated attempts to use argument from authority in our discussion with this statement you made in the comments at S&S:

    I’m even less interested in whether a naked argument from authority can be constructed about whether or not something is a “science,” which is all your list represents.

    Are you opposed to arguments from authority only when the topic is “what is science”?

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