FauxPolitik

Wednesday, December 21, 2005

More on Kitzmiller: I'm slogging my way through the 140 page opinion and while not yet done, have some commentary (in true FP form [don't need to be informed to have and express one's opinions]): First, Judge Jones carefully builds his treatment of the case through extensive citation to precedent, not only for the legal tests and burdens, but to show how courts have historically treated and described Establishment Clause cases. While this is hardly ground-breaking for a judge [umm, yahh - Ed.], he is nonetheless craftily insulating his opinion from the attack that he is letting his own feelings get in the way (please note this is a 2002 Bush appointee). For example:

After a brief recitiation of the parties, he gets to the Supreme Court tests for evaluating church-and-state matters, noting that the precedent clearly shows that the Court prefers a "belt and suspenders" approach to these cases of utilizing the "endorsement" test, and then further refining the issue by using the device created in the Lemon v. Kurtzman (the "Lemon Test"). Quickly, the "endorsement test" is the smell test; would the average outside observer find that the law or school board ruling in question perceive it to be endorsing a religion or religious dogma in general. (Emphasis mine). Courts love to assume the "reasonable person" stance, and it's a time-honored straw-party argument, but nonetheless, comprehensible. If endorsement is perceived, then you use the Lemon Test to find a constitutional violation.

Jones layers in stratum after stratum of historical cases to show how courts across the country have dealt with creationism in schools and government, and how the Dover school board deserves the same treatment. He never once tries to editorialize -- he simply keeps piling on with the stare decisis to show how he is falling squarely in line with those that came before him.

Second, and more interestingly (for a case of this type of magnitude), he relies on the parties' own testimony -- meaning he doesn't forget he's a trial judge -- he knows he's writing for appellate review (and possibly posterity), yet he is not hesitant about using the multiple inconsistencies (and yes, lies) against the proponents of ID to show that they are disingenuous about their intentions -- and in this type of case, intention means a whole lot (is it your real intention to teach science [to the extent that it is], or are you just pushing gospel?). Since a trial court is the master of the facts, appellate courts are loathe to, and greatly restrained in their ability to, overrule the trial court's rendition of the facts -- when the facts are strongly portrayed, the avenues for attack are greatly reduced.

Last, he directly confronts his critics -- noting that in today's environment, when you deny the fundamentalists (of every stripe) their way, you are accused of being an "activist" -- telling them they'd be sorely mistaken to confuse his bent with some California nut-job jurist who thinks owls should have more rights than unborn fetuses (for example). He takes a lot of wind out of their sails.

This post focuses mostly on the stylistic, as I couldn't possibly do justice to the actual substance in this space -- but here we find an example of style equaling the importance, and indeed heightening the effect of, substance.

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