Wexler on Kitzmiller

Posted 3 March 2007 by Timothy Sandefur

Professor Jay Wexler's article on the Kitzmiller case, Kitzmiller And The "Is It Science?" Question, 5 First Amend. L. Rev. 90 (2006), has been the source of some glee for Creationist Casey Luskin. In the article, Wexler contends that Judge Jones's finding that Intelligent Design isn't science was unnecessary and unwise. Luskin, never one for, you know, legal thinking, immediately pounced on the article to say that Wexler "agreed in print with my position on this question." Now that I've seen the article, I can say that, as is typical for Luskin, this is at best a half truth. Wexler's argument is that Jones needed only to find that Intelligent Design is religion, not to discuss whether or not ID might also qualify as science, or whether it is impossible for the two to cross over. For example, writes Wexler, "[w]hat if...a scientist performed a study indicating that there is at least some scientific support for the idea that people are reincarnated after death...? Would the existence of this one study allow schools to teach reincarnation as fact, even if most reasonable people still view the idea as religious? Does a certain belief cease being religious as soon as science steps into the picture, no matter how slightly? This hypothetical suggests the answer is 'no.'" Id. at 98. In other words, the fact that ID is religion is alone sufficient to prohibit government schools from teaching it as fact, regardless of any scientific bona fides it might or might not have. Not exactly Creationist Luskin's view. Judges, Wexler continues, are not well suited to determining what is or is not science. And their attempts to do so might be dangerous, because they might

open the door to future manipulation.... [I]f one judge can practice philosophy of science, what is to stop others from doing the same? Perhaps the next judge to hear an ID case will decide that science simply means "the process of searching for the best logical explanations for observed data." In that case, schools might be allowed to teach not only ID but also perhaps the whole kit and caboodle of young earth Creationism. Is this really a can of worms that ID opponents want to open?

Id. at 107-08. I disagree with Wexler's analysis. First, the question of whether ID is science was relevant, because ID's scientific masquerade is precisely what makes ID new, in comparison to the older versions of creationism. Analyzing whether ID is science is helpful in the overall analysis of whether it is constitutional for a school to teach it. Not dispositive, no---but helpful, and as Wexler notes, determining whether something is unconstitutional endorsement of religion "is necessarily a fact-intensive inquiry that considers the entire circumstances surrounding a government action or policy." Id. at 98. Wexler is right to say that ID's religious nature is itself sufficient to make it out of bounds for government schools, but since ID claims to be scientific, it is important to conduct that analysis as well. Moreover, as Wexler acknowledges, judges routinely engage in defining terms, or analyzing whether certain facts satisfy those terms. While it is true that judges usually do this with words that are "contained in concrete legal sources such as statutes, regulations, executive orders, or perhaps judicial opinions from higher courts," id. at 101, this is far from being always the case. Every law student knows the famous Frigaliment case, which begins, "The issue is, what is chicken?" Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp 116, 117 (S.D.N.Y. 1960). And there are many other examples of courts using trade practices or, of course, dictionaries, to determine the meaning of words used in a layman's sense or in a technical sense outside of law. See, e.g., Matrix Intern. Textiles, Inc. v. Jolie Intimates Inc., 2005 WL 1074774, *9 (N.Y.City Civ. Ct. 2005) (determining the meaning of "baby rip" as used in the textile industry); Avon Products, Inc. v. S.C. Johnson & Son, Inc., 984 F.Supp. 768, 770 (S.D.N.Y. 1997) (determining meaning of "insect repellant"); Nix v. Hedden, 149 U.S. 304, 307 (1893) (determining difference between "fruits" and "vegetables"); Robertson v. Salomon, 130 U.S. 412, 414-15 (1889) (determining the meaning of "seed.") There is no reason why judges cannot determine the meaning of "science," and, in particular, to determine that it is characterized by "methodological naturalism." It is true, of course, that if a court has the power to judge the meaning of "science," that it will also have the power to mess up the meaning of science. Anyone who is asked to give an answer has the power to get the answer wrong. But I'm somewhat impatient with the argument that for this reason we should restrict the scope of the judicial role. Somebody, after all, has to make this decision, and while we should always ask the experts first, they, too, have the capacity to get it wrong. What's great about Judge Jones' analysis of the definition of science is that he relied on the experts to come up with his answer, rather than allowing the answer to spring from his head or from some preconceived notions. That's what judges do at their best. But to say that because judges might get the answer wrong, we should deprive them of their ability to answer these questions is unconvincing, in part because the same argument could be made for taking criminal cases out of the hands of judges (or juries, for that matter), or for taking constitutional questions out of their hands, or for taking any other questions away from them. At the Virginia Ratification Convention, Patrick Henry and others argued that Congressmen could not be trusted with certain powers because they might abuse those powers. James Madison replied in words equally applicable to Wexler's argument,

I have observed, that gentlemen suppose, that the general legislature will do every mischief they possibly can, and that they will omit to do every thing good which they are authorised to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude, that they will as readily do their duty, as deviate from it: Nor do I go on the grounds mentioned by gentlemen on the other side---that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks---no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.

3 J. Elliot, Debates 536-37 (1836). Certainly judges can get things wrong. But their job is to judge things, and if they are asked to judge whether or not something is science, there is no reason they should not discharge that duty. Wexler's article is not available on line yet, but when it is, I will post a link.

24 Comments

Mike Elzinga · 3 March 2007

Philosophers and "experts" can argue interminably about the demarcation issue, but the practical fact remains that ID is not science because its proponents haven't done anything that merits inclusion in established track record of science. That in itself would be sufficient. If other more legitimate ideas haven't yet made it as established science, why should they be exempt from having to demonstrate anything?

They spend millions on propaganda pushing a sectarian agenda under the guise of having done some science, and then they have the gall to think nobody notices the fraud they are perpetrating. No doubt they will continue to whine, but we should continue to keep the spotlight on their sleazy tactics.

SLC · 3 March 2007

As Judge Jones has stated in every presentation he has given since the trial, both sides requested that he rule on whether ID was science.

Corkscrew · 3 March 2007

I had assumed that, were ID scientific, it would no longer be in violation of the "valid secular purpose" prong of Lemon. Is that wrong?

mark · 3 March 2007

How might Daubert v. Merrill Dow relate to this? Judge Jones heard from various experts, and there obviously was a difference of opinion regarding expertise between the two sides, particularly with respect to the testimony of Barbara Forrest.

peter irons · 3 March 2007

Tim,

You've done a great job puncturing Casey's Luskin's embrace of Wexler (probably to Wexler's discomfort) as an anti-ID legal scholar who thinks Judge Jones went too far in Kitzmiller in holdng that ID is not science. Since I have discussed this quesion in a forthcoming article in the Montana Law Review, replying to an attack on Judge Jones in an article by Luskin (along with John West and David DeWolf of the Discovery Institute), I'll just add a brief comment on a point I made in my article. Tellingly, Luskin and his DI cohorts don't argue with two portions of Judge Jones's opinion. First, that the Dover school board acted with religious motives in adopting the pro-ID statement that school officials read to biology students(over the protest of the science teachers). Second, that ID is an inherently religious concept, although I wonder why the DI hasn't denounced this finding, since it undercuts their argument against Jones's holding that ID isn't science. Nonetheless, that holding, in my opinion (and contra to Wexler) was necessary to the opinion. If, in fact, ID is a legitimate scientific theory, then the religious motives of the Dover board members, or of ID's proponents, would be irrelevant and ID might be legitimately tauht in biology classes. The example I used in my article is this: if the sponsors (in any legislative body, from a city council to Congress) of a civil rights bill with purely secular purposes made religious statements in seeking votes for the bll, such as "the Bible tells us that racial discrimination is wrong," that would not make the bill unconstitutional. If ID were a purely secular notion, the religious motivations of its proponents would not make its teaching unconstitutional. But if ID is not scince, because it is inherently rooted in religious concepts (as Judge Jones properly found), then its teaching in public schools is unconstitutional. You and I obviously disagree with Wexler on this issue, but I think he's wrong.

Flint · 3 March 2007

If something successfully passes empirical tests, is there any legal principle saying that it can only be taught as science if it's not part of someone's religious doctrine? Much of the content of most religions is trivially true.

And I think this was at the heart of the ID strategy, at least originally. IF findings consistent with fundamentalist doctrine can result from original research, THEN the research can be taught despite this congruence. There's no philosophical rule that religions *must* teach Truths which either fail scientific test or are not testable at all. Some religious Truths are actually correct.

I believe Philip Johnson at least initially was fully confident that DI and other genuine scientists would go out and find what he knew by Revelation to be the case. How could they possibly miss? Would God have lied? All that was needed was for Christ-aware scientists to look in the right place, and Truth would emerge in laboratory testing.

I suspect the strategy of getting creationism into science classes kind of presumed that these results would be forthcoming fairly quickly and unambiguously. So they ran into a timing problem: the political and PR efforts came to a head too soon; the scientific support unaccountably lagged, making the strategy difficult to defend on the merits.

Still, the creationists had little choice in Dover but to dance with what brung them, even if it was far from ready for scientific prime time. They needed to bluff it out, though all but Behe and Minnich could read the writing on the wall and cut their losses. The central justification for the Dover Statement, at least for legal consumption, is that it IS science. Prove me wrong!

So Jones really had little choice here. IF there were scientific merit, then it can't be tossed because there was ALSO religious merit. It had to be 100% religion, and 0% science, and that means both magisteria needed to be examined.

trrll · 3 March 2007

In practice, it appears that judges do a rather good job of deciding scientific questions, probably about as good as scientists do. This is not surprising. Lawyers become judges because of their mastery of reasoning, logic, and evidence. The only thing they lack when it comes to deciding scientific questions is knowledge. But knowledge can be acquired through expert testimony--and judges are also well qualified to evaluate the qualifications of expert witnesses.

Popper's ghost · 3 March 2007

Lawyers become judges because of their mastery of reasoning, logic, and evidence.

Is this some sort of very subtle ironic joke? Can you explain the process by which such mastery turns lawyers into judges? Judge Jones may well have such mastery, but it wasn't a given. He became a judge not because of such mastery, but because he was a Republican politician (chairman of the Pennsylvania Liquor Control Board) and associated with George Bush's friend Tom Ridge.

The only thing they lack when it comes to deciding scientific questions is knowledge.

Ya gotta love the grossly over-generalized post facto just so story. One can find numerous cases where judges showed a lot more lack than that.

shiva · 4 March 2007

Hasn't Casey read Billy Boy's rebuttal report here http://tinyurl.com/3x3cmx? Bill D clearly writes, "Does ID have its core a scientific tehory and research program? This is the key question that needs to be addressed in deciding Kitzmiller v. Dover." The ID guys, so deluded, thought they could pass off a tatty piece of trash as science, asked for a decision and had it coming.

jhanley · 4 March 2007

As several people have pointed out, here and in previous threads, both sides specifically requested Judge Jones to rule on whether ID is science or religion. However that did not create a requirement that he do so--it just undercuts the IDers post-hoc criticism of his ruling.

But, also as many here have noted, it was necessary to the ruling because it constituted the evidence on which the ruling is based. And a point I have not seen mentioned here, is that this kind of Federal District Court determination is specifically what Justice Scalia asked for in his 1987 dissent in Edwards v. Aguillard!

In Edwards Scalia pointed out that the Federal District Court had given the plaintiffs summary judgment, thus there was never a full evidentiary hearing. Here are some excerpts from his dissent.

"This case arrives here in the following posture. The Louisiana Supreme Court has never been given an opportunity to interpret the Balanced Treatment Act. State officials have never attempted to implement it, and it has never been the subject of a full evidentiary hearing. We can only guess at its meaning." ...

"We have relatively little informatio upon which to judge the motives of those who support the Act....We have no committee reports, no floor debates, no remarks inserted into the legislative history..." ...

"...I would reverse the judgment of the Court of Appeals and remand for further consideration."

Now few people here would agree with Scalia that "we can only guess" at the Act's meaning, and he did assert his belief that the Louisiana law in Edwards had a secular purpose. My point is not to defend Scalia that far.

But what we truly know about the purpose of creationism/ID supporters is not sufficient to support a Court ruling unless it is actually put into the legal record, which never happened in Edwards. So on the law Scalia had the better argument.

So in Kitzmiller, a Federal District Court finally did what Scalia himself wanted a Federal District Court to do 18 years previously. So anyone who can criticize Judge Jones' analysis is really only arguing--against Scalia--that Federal Courts ought to do avoid full evidentiary hearings.

So, law without evidence? That's a scary thought.

jhanley · 4 March 2007
As several people have pointed out, here and in previous threads, both sides specifically requested Judge Jones to rule on whether ID is science or religion. However that did not create a requirement that he do so--it just undercuts the IDers post-hoc criticism of his ruling.
But, also as many here have noted, it was necessary to the ruling because it constituted the evidence on which the ruling is based. And a point I have not seen mentioned here, is that this kind of Federal District Court determination is specifically what Justice Scalia asked for in his 1987 dissent in Edwards v. Aguillard!
In Edwards Scalia pointed out that the Federal District Court had given the plaintiffs summary judgment, thus there was never a full evidentiary hearing. Here are some excerpts from his dissent.
"This case arrives here in the following posture. The Louisiana Supreme Court has never been given an opportunity to interpret the Balanced Treatment Act. State officials have never attempted to implement it, and it has never been the subject of a full evidentiary hearing. We can only guess at its meaning." ...
"We have relatively little information upon which to judge the motives of those who support the Act....We have no committee reports, no floor debates, no remarks inserted into the legislative history..."
"...I would reverse the judgment of the Court of Appeals and remand for further consideration."
Now few people here would agree with Scalia that "we can only guess" at the Act's meaning, and he did assert his belief that the Louisiana law in Edwards had a secular purpose. My point is not to defend Scalia that far.
But what we know about the purpose of creationism/ID supporters--even though we truly know it--is not sufficient to support a Court ruling unless it is actually put into the legal record, which never happened in Edwards. So on the law Scalia had the better argument.
So in Kitzmiller, a Federal District Court finally did what Scalia himself wanted a Federal District Court to do 18 years previously. So anyone who can criticize Judge Jones' analysis is really only arguing--against Scalia--that Federal Courts ought to do avoid full evidentiary hearings.
So, law without evidence? That's a scary thought.

jhanley · 4 March 2007
As several people have pointed out, here and in previous threads, both sides specifically requested Judge Jones to rule on whether ID is science or religion. However that did not create a requirement that he do so--it just undercuts the IDers post-hoc criticism of his ruling.
But, also as many here have noted, it was necessary to the ruling because it constituted the evidence on which the ruling is based. And a point I have not seen mentioned here, is that this kind of Federal District Court determination is specifically what Justice Scalia asked for in his 1987 dissent in Edwards v. Aguillard!
In Edwards Scalia pointed out that the Federal District Court had given the plaintiffs summary judgment, thus there was never a full evidentiary hearing. Here are some excerpts from his dissent.
"This case arrives here in the following posture. The Louisiana Supreme Court has never been given an opportunity to interpret the Balanced Treatment Act. State officials have never attempted to implement it, and it has never been the subject of a full evidentiary hearing. We can only guess at its meaning." ...
"We have relatively little information upon which to judge the motives of those who support the Act....We have no committee reports, no floor debates, no remarks inserted into the legislative history..."
"...I would reverse the judgment of the Court of Appeals and remand for further consideration."
Now few people here would agree with Scalia that "we can only guess" at the Act's meaning, and he did assert his belief that the Louisiana law in Edwards had a secular purpose. My point is not to defend Scalia that far.
But what we know about the purpose of creationism/ID supporters--even though we truly know it--is not sufficient to support a Court ruling unless it is actually put into the legal record, which never happened in Edwards. So on the law Scalia had the better argument.
So in Kitzmiller, a Federal District Court finally did what Scalia himself wanted a Federal District Court to do 18 years previously. So anyone who can criticize Judge Jones' analysis is really only arguing--against Scalia--that Federal Courts ought to do avoid full evidentiary hearings.
So, law without evidence? That's a scary thought.

Explicit Atheist · 4 March 2007
Prof. Wexler has it backwards. The relevant legal issue is not whether or not ID is religion, the relevant legal issue is whether or not ID is science. Secularism is indifferent regarding the truth or falsity of religious claims, it only concerns itself with empirical knowledge. If it is science then there is a secular justification for including it in the curriculum. Indeed, if it is science then excluding it from the curriculum for no other reason then that it is consistent with some religion would be discrimination against that religion which is exactly what the non-establishment clause forbids.

Popper's ghost · 4 March 2007
The relevant legal issue is not whether or not ID is religion, the relevant legal issue is whether or not ID is science.
Since the establishment clause mentions religion, but not science, that's not correct.
If it is science then there is a secular justification for including it in the curriculum.
The establishment clause refers to religion, not to science or secular justifications. That's why the Lemon test has three prongs, each of which must be satisfied. The second bars having the primary effect of either advancing or inhibiting religion, and the third bars resulting in an excessive entanglement with religion. Having a secular justification isn't sufficient. That may not be what we want, but it is the law.
Indeed, if it is science then excluding it from the curriculum for no other reason then that it is consistent with some religion would be discrimination against that religion which is exactly what the non-establishment clause forbids.
The clause doesn't forbid any such thing, and if it did, then official school prayer, and nativity scenes on government property, wouldn't be banned -- they are banned specifically because they are part of some religion. In any case, no one banned anything; the Dover school board required that ID be mentioned in science classes, and the religious nature of ID and the religious motivations of the board established that the Lemon test was violated, without ever determining whether ID is or is not science.

David · 5 March 2007
Judges, Wexler continues, are not well suited to determining what is or is not science.
— Timothy Sandefur
I would contend that judges are no better suited to determining what is or is not religion, yet the DI seems to fervently wish that Judge Jones had done just that, and ONLY that. While I'm sure such would have much better suited their agenda, that decision would have been open to precisely the same criticism. If we are to follow this logic through, then what ARE judges suited to determining? I (am not a lawyer but) would think most cases involve SOME determination beyond the purely-legal; I hope (and for the most part believe) that our judges are competent and qualified to logically consider any evidence put before them.

Chip Poirot · 5 March 2007
Yesterday I tried to post several excerpts from the Judge's decision in Kitzmiller. After putting a significant amount of effort into that post-replete with links and quotes, the post seems to have vanished.
Instead therefore, I will just make a short comment.
In Kitzmiller there were two tests applied.
One test is the establishment test and seeks to understand what a reasonable observer would think about the action of the government (i.e. would a reasonable observer interpret the action of as establishing religion).
This test was then applied to the Lemon test which is a three prong test. If an action fails any of the three prongs, it doesn not pass muster.
As a pragmatic matter for distinguishing between science and religion in K-12 classrooms, the judge's decision probably makes sense. And for the record, I think Kitzmiller was rightly decided.
As a more abstract, philosophical matter there are problems with the definitions of science that are emerging. Several well known philosophers of science have written on these issues. The dispute goes back at least to Larry Laudan's dispute with Ruse.
I agree in the abstract with Larry Laudan: science is being defined simplistically and furthermore, our legal system does a poor job of getting at truth. As a pragmatic mattter for the purposes of trying to determine in the context of American Constitutional principles what is science and what is religion, the overall motives of people do matter.

Explicit Atheist · 5 March 2007
Since the establishment clause mentions religion, but not science, that's not correct.
— Popper's ghost on March 4, 2007 11:48 PM (e)
It is correct in a school curriculum context since science is not religion even when science agrees with a religious claim. We know what is published in peer reviewed scientific journals. We can determine the consensus of the experts who are the scientists. If it isn't accepted by a consensus of the experts as being scientific then it isn't science and it therefore doesn't belong in the curriculum. ID proponents are trying to bypass the scientific process and get ID into the curriculum through elections for school board members. That is a dishonest and losing strategy. Public opinion doesn't define what is scientific.
The establishment clause refers to religion, not to science or secular justifications. That's why the Lemon test has three prongs, each of which must be satisfied. The second bars having the primary effect of either advancing or inhibiting religion, and the third bars resulting in an excessive entanglement with religion. Having a secular justification isn't sufficient. That may not be what we want, but it is the law.
— Popper's ghost on March 4, 2007 11:48 PM (e)
If ID were science then ipso facto it wouldn't have a primary effect of either advancing or inhibiting religion nor would it result in excessive entanglement with religion. The big problem with ID is that it clearly is not science despite the efforts of some proponents to package it as such.
The clause doesn't forbid any such thing, and if it did, then official school prayer, and nativity scenes on government property, wouldn't be banned --- they are banned specifically because they are part of some religion. In any case, no one banned anything; the Dover school board required that ID be mentioned in science classes, and the religious nature of ID and the religious motivations of the board established that the Lemon test was violated, without ever determining whether ID is or is not science.
— Popper's ghost on March 4, 2007 11:48 PM (e)
On the contrary, government discriminates between religions and between religion and non-religion when it sponsors partisan activities\displays. Prayer and nativity scenes are partisan activities\displays. While religious motive is of course an important factor, it isn't enough to make ID unconstitutional because ID proponents claim that ID is science. They are wrong, it isn't science, and that is why it cannot be taught. If they were right and ID was science then it would be constitutional to teach in public schools, indeed it would have to be taught just like all other science.

Chip Poirot · 5 March 2007
Explicit Atheist,
You can find the whole text of the Kitzmiller case on Talk Origins. I would give you a link but for some reason the server does not want to accept my html tags.
You are wrong (as to the specific legal point): the motivation of the school district in setting the curricular goal does in fact matter when it comes to determining the Lemon test. In order to pass Lemon you have to pass all three prongs. So even teaching a scientific point of view with a religious motivation would not be acceptable.
Also, I disagree with your apparent definition of science as simply what passes peer review. That is only one component of science as far as Daubert is concerned.
Again, I think there is a difference between defining science pragmatically to help us establish what should be admitted in court as scientific testimony and distinguishing between religion and science for First Amendment purposes vs. the philosophical definition of science.
For example, Larry Laudan made the argument that creation science is testable, and therefore is bad science rather than religion. Laudan's point was that for philosophical purposes we could distinguish between motive and theory-which is true as far as philosophy is concerned.
However, when we are talking about law, motive becomes relevant. This means Laudan was right philosophically but Ruse was right legally. Ideally, we would like to have the law reflect sound philosophy but sometimes the two have different goals.

Sir_Toejam · 5 March 2007
Yesterday I tried to post several excerpts from the Judge's decision in Kitzmiller. After putting a significant amount of effort into that post-replete with links and quotes, the post seems to have vanished.
many links in one post can sometimes cause a comment to be rejected by the spam filter. experience has taught those who have been here a while to always copy a lengthy comment before hitting the post button.

Explicit Atheist · 5 March 2007
You are wrong (as to the specific legal point): the motivation of the school district in setting the curricular goal does in fact matter when it comes to determining the Lemon test. In order to pass Lemon you have to pass all three prongs. So even teaching a scientific point of view with a religious motivation would not be acceptable.
— Posted by Chip Poirot on March 5, 2007 6:20 PM (e)
I agree that religious motivation should not be biasing the teaching. That works both ways, basically wherever science goes that is where the curriculum should go. My point is that when some claim is accepted by the scientific community that studies that topic then that claim no longer should (whether it does or not as a matter of legal precedent I am not going to comment on) be considered either too religious or too anti-religion to be permissable for the classroom. Science as a discipline is indifferent to religion. In fact, as a practical matter, I don't see how it could be otherwise. For example, the Big Bang cosmology theory was widely considered to be supportive of Creator God religious beliefs. If doesn't follow that therefore it is unconstitutional to teach the Big Bang cosmology theory. So the issue of whether or not a disputed claim is supported by the expert scientific consensus is dispositive in the sense it therefore belongs in the science curriculum and as a purely practical matter I don't see how it could be properly or fairly deemed otherwise by the law.
Also, I disagree with your apparent definition of science as simply what passes peer review. That is only one component of science as far as Daubert is concerned.
— Posted by Chip Poirot on March 5, 2007 6:20 PM (e)
Lets say it is minimum requisite that is usually sufficient. Details about who qualifies as experts and how to count the consensus can also be disputed. But I am not going to put all of the technical qualifications in my sentences, even if I knew them, that isn't necessary to communicate about this here.
Again, I think there is a difference between defining science pragmatically to help us establish what should be admitted in court as scientific testimony and distinguishing between religion and science for First Amendment purposes vs. the philosophical definition of science.
— Posted by Chip Poirot on March 5, 2007 6:20 PM (e)
Well, court testimony has its own requirements and philosophy is less constrained by empirical standards. I would think that for first amendment purposes the consensus of the experts would be more important than in the other contexts.
For example, Larry Laudan made the argument that creation science is testable, and therefore is bad science rather than religion. Laudan's point was that for philosophical purposes we could distinguish between motive and theory-which is true as far as philosophy is concerned.
— Posted by Chip Poirot on March 5, 2007 6:20 PM (e)
Larry Laudan's argument sounds good to me. Legally, whether its bad science or not science at all, I don't think that should make any difference to the outcome. If someone can demonstrate that biology is too complex to have evolved by random mutations then that is a proper topic for the classroom. The problem is that the too complex to evolve claim is not true, or at least it hasn't been demonstrated to the satisfaction of the scientific community. The arguments that biological complexity cannot evolve have been defeated. And that really is the key issue in my view. Whether the claim supports or doesn't support some religion shouldn't matter except in the sense that claims that support the religious beliefs of the claims' advocates gives some additional reason to be skeptical. Hopefully, that same skepticism is applied to all scientific claims anyway.
However, when we are talking about law, motive becomes relevant. This means Laudan was right philosophically but Ruse was right legally. Ideally, we would like to have the law reflect sound philosophy but sometimes the two have different goals.
— Posted by Chip Poirot on March 5, 2007 6:20 PM (e)
I don't think motive trumps the "is it good science?" issue here. Whatever the motives of the supporters and opponents of the disputed claim, whatever the arguments about how the disputed claim supports or opposess religious beliefs, the bottom line is that if the disputed claim isn't good science then it doesn't belong in the curriculum as science. And the best measure of what is good science is the consensus of the scientific community who are the experts for that topic. Its just that simple and frankly, if judges or lawyers or anyone else are putting higher priority on other criteria for deciding this lawsuit then I think that is mistake.

Chip Poirot · 5 March 2007
Explicit atheist:
I don't think we disagree-at least not too strenuously.
The point I am trying to get at is the one Laudan raised in his critique of Ruse and of the court's ruling in either Edwards or Aguilar. Ruse was the primary pro-science witness in one of those cases-I forget which. It was his testimony that sparked the controversy in Laudan's famous (or infamous) essay "Science at the Bar."
Creation Science was ruled not science by the courts because it was deemed non-falsifiable and Ruse pushed that definition in his testimony. So the outcome was the court relied in that case very strongly on Popper. Popper gives us a very simplistic definition of science.
Laudan's point was that philosophicaly motive did not matter. He further argued that creation science was falsifiable and had in fact been falsified as much as anything could ever be falsified. Laudan went on to argue that the theories of creation science could be separted from the motives of creation scientists.
Philosophically this is correct. Legally it is incorrect. The motives of creation scientists or ID proponents in drafting the disclaimer for the Dover district are relevant to deciding the case. The motives of ID proponents are not relevant in deciding whether ID is science or not.
I say it is not science for multiple reasons. But even if it could pass some minimum threshold for science, if a school district was promoting it based on religious motives it would still fail the Lemon test.

Popper's ghost · 6 March 2007
It is correct in a school curriculum context since science is not religion even when science agrees with a religious claim.
As I said, the law refers to religion, not science. If someone established the Church of Einstein with Einstein's 1905 papers as holy texts, and some school board mandated the teaching of the Church of Einstein's holy texts, that mandate would be unconstitutional, despite the fact that the mandated content is entirely scientific. But this would not prevent the teaching of Einstein's work under some non-religious mandate.
If ID were science then ipso facto it wouldn't have a primary effect of either advancing or inhibiting religion nor would it result in excessive entanglement with religion.
You are making a category mistake; "ID" is not a government action.
On the contrary, government discriminates between religions and between religion and non-religion when it sponsors partisan activities\displays.
Contrary to what? Your comments are non sequitur.

Popper's ghost · 6 March 2007
They are wrong, it isn't science, and that is why it cannot be taught.
Plenty of things that aren't science can be taught in school. In fact, non-science can even be taught in science classes; it may be a bad idea, and it may be irresponsible, but it isn't a violation of the Constitution, as long as the teaching of it doesn't violate the Lemon test -- which is all about religion and motivation, not science. What is at issue is what the law says, a point which you steadfastly ignore. This is also the point that Chip makes in distinguishing between what is philosophically valid and what is legally valid.

TomS · 7 March 2007
This issue of the First Amendment Law Review (volume 5, number 2, fall 2006) has three articles on the Kitzmiller ruling:
Arnold R. Loewy
The Wisdom and Constitutionality of Teaching Intelligent Design in Public Schools
pages 82-89
Jay D. Wexler
Kitzmiller and the "Is It Science?" Question
pages 90-111
Richard B. Katskee
Why It Mattered to Dover that Intelligent Design Isn't Science
pages 112-161
Katskee is Assistant Legal Director, Americans United for Separation of Church ans State, and "one of the principal attorneys for the plaintiffs in the Kitzmiller case."
I recommend anyone interested in this topic to read all three of these articles, where the issues are hashed out in much detail. Katskee agrees that the judge had to address the "Is It Science?" question, and his article is a rebuttal to those of Loewe and Wexler. I hope that these articles become available to a wider public. All three. I don't know how much a single issue costs (I was able to read it at a local law library) - check their online site at http://falr.unc.edu/ .