Saturday, January 20, 2007

More on Kitzmiller

The Evolution News & Views blog entry Law Review Article Agrees That Judge Jones Went Too Far reveals the views of Philip A. Italiano as noted in the Rutgers Journal of Law & Religion. The topic is the judicial wisdom of Judge Jones' decision in the Kitzmiller case concerning whether ID is science. Quoting:


"Perhaps there theoretically could exist a factual scenario in which the motives of those who write intelligent design into a public school science curriculum are nonreligious, and in which the only way for a court to ascertain whether the policy has the effect of an actual or perceived endorsement of religion is to determine whether intelligent design is or is not science. Kitzmiller was not such a case, however, and until that case arises, courts should strike down such policies on narrower grounds. The Kitzmiller court could have struck down Dover's policy under either the Lemon test's purpose prong or under the endorsement test without judging the scientific validity of intelligent design." 1

Quoting from a Supreme Court decison:

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.

(Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 397 (1926).)



Defenders of Judge Jones have argued that his foray into the science question was necessitated by a request that he so decide this issue. Was it? Could Judge Jones have disregarded such a request in order to guard "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?" Would not a decision based on religious intent have better satisfied the guidelines laid down by Village of Euclid v. Ambler Realty Co.?

1. Phillip A. Italiano, Kitzmiller v. Dover Area School District: The First Judicial Test for Intelligent Design, 8 Rutgers Journal of Law & Religion 4, 46 (Fall, 2006)

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