Timothy Sandefur Archives

Stephen Dilley’s new book, Darwinian Evolution And Classical Liberalism: Theories in Tension, is now available, at least on Kindle. Chapter 12 is by me; it’s entitled, somehwat dully, “Classical Liberalism And Evolution.” In it, I argue that evolution, far from undercutting the premises of classical liberalism, is at least compatible with them, and, as I think, provides a stronger foundation for them than any variety of creationism. But, as I contend at the outset, it doesn’t much matter, because evolution is true. So if it’s incompatible with libertarianism, then so much the worse for libertarianism.

Chapter 11 is by my friend Shawn Klein; it’s called, somewhat more interestingly, “Volitional Consciousness and Evolution.” Other contributors include Roger Masters and Michael J. White.

SCOTUSBlog is running a symposium on the case of Association of Molecular Pathology v. Myriad Genetics, which presents the question of whether human genes are patentable. I blogged about the case when the Federal Circut upheld the patent.

…is probably this one.

The blog 11 Points has a hilarious look at the creationist textbook Science 4 For Christian Schools.

I think this story calls for revising the rules of Rock-Paper-Scissors-Lizard-Spock into Rock-Paper-Scissors-Orca-Shark. You know, Paper covers Rock, Scissors cut Paper, Orca puts Shark into state of tonic immobility.

About two weeks ago, the Federal Circuit–one of the nation’s Courts of Appeals, and therefore the second-highest level of the federal judiciary–handed down its decision in Association for Molecular Pathology v. PTO, a case about the controversial subject of gene patenting. The court upheld the patenting of genes–though not other patents, which cover certain methods of comparing or testing genes, and this has sparked some (to my mind, correct) outrage on the part of researchers, who see gene patenting as an obstacle to research and progress in genetics. Because this is not really about evolution, I examine the decision over at my personal blog, Freespace.

Teaching the controversy. (HT: NoodleFood)

I’m very proud to see that my alma mater, Chapman University, has become the newest site for the Evolution Education Research Center’s network. The announcement came last month at an event featuring Eugenie Scott of the NCSE. Congratulations to Prof. Brian Alters.

I’m particularly happy to see this because a few years ago, as readers will recall, the Chapman Law Review published a terrible creationist article. As an alumnus, I was so embarrassed to see the school’s name on such a piece of tripe that I responded with an article of my own. It’s nice to see Chapman step up for science!

Y’all remember how, years ago, Casey Luskin and the boys were calling Judge Jones a plagiarist because the final decision in Kitzmiller drew a lot of language from the briefs? I pointed out at the time that, well, that’s what briefs are for. Now here’s an article in Political Research Quarterly that uses software to find that even the U.S. Supreme Court draws a lot of language from the briefs filed by the parties in any particular case, thus reaching the unremarkable conclusion that “there is a connection between the language of the parties’ briefs and the language of the opinions, which means that parties have the potential to influence the law.” For most of us, it’s nice to know that court opinions show the judges actually read the briefs. But for Luskin & Co., it’s doubtless evidence of just how huge the Darwinist plagiarist conspiracy really is.

A couple weeks ago, the Skeptic’s Guide to the Universe (the best podcast there is, by the way) covered a horrific story about an Australian couple who tortured a woman after a psychic led them to believe that she was responsible for a theft they had suffered. Their attack on her was really godawful. But then the Rogues got to talking about whether the psychic was herself criminally or civilly liable for her part in the affair, and much of what they said was incorrect. I thought it might serve as an interesting “teaching moment,” but as it has less to do with creationism than with woo in general, you can read more over at Freespace.

Casey Luskin has an article in the Liberty University Law Review which he claims isn’t about Intelligent Design creationism, but is instead meant to show how “zeal for Darwin encourages certain violations of the Establishment Clause.” It will come as no surprise to anyone that Luskin’s argument is flimsy, his evidence illusory, his readings of the case law distorted, and the overall effect essentially a fun-house mirror version of First Amendment law.

Luskin’s thesis is that criticizing Intelligent Design creationism = attacking a religious viewpoint. He combines this with an insistent denial that ID is a religious viewpoint, which is an amusing effort to stick to the Discovery Institute party line, but is not, strictly speaking, illogical. His position is that, if we assume the fact (which is a fact, but he assumes, rather than believing it) that ID creationism is a religious viewpoint, why, then, it violates the First Amendment to disparage it: “Sylvia Mader’s 2007 introductory biology textbook, Essentials of Biology…plainly communicates that ID runs counter to the factual scientific data,” he writes. “If she is correct that ID is a religious viewpoint, is it appropriate for state schools to use her textbooks that unambiguously claim ID is empirically wrong?”

The correct answer is, yes, it’s perfectly constitutional and perfectly appropriate–but of course, to Luskin, the answer is no: “Students who support scientific creationism would thus hear that their ‘set of religious beliefs’ is not only an ‘arbitrary faith,’ but that they are not using their ‘God-given gifts to reason and to understand’ in the way God intended. While many might agree with such arguments, religious neutrality forbids the government from attacking, opposing, and disapproving of such a ‘set of religious beliefs’ in this fashion.”

This is false. The neutrality requirement in the First Amendment forbids the government from taking a position on the truth or falsehood of a religious doctrine in religious terms, but it may take a position on any matter on areligious or non-religious terms. That is, the Constitution forbids the government from endorsing or propagating or censoring the doctrinal truth of a religious proposition, but it does not forbid the government from endorsing or propagating the factual truth of a proposition, even if those propositions turn out to be the same in content. It does not forbid the government from reaching a conclusion, and stating or endorsing that conclusion, from secular premises, even if that conclusion happens to clash with someone’s religious view. Government may not take religious positions, but it take secular positions that happen to clash with positions endorsed by a religious viewpoint.

This ought to be plainly obvious. Some people, for example, believe that AIDS is a punishment sent from God to scourge sodomites, or that blacks are inherently inferior to whites, or that ancient Indian tribes descended from Israelites and fought wars in chariots, or that earthquakes express Vulcan’s displeasure at man’s hubris.* The First Amendment forbids the government from taking any official doctrinal positions on these matters–but it does not forbid, and could not possibly forbid the government from teaching that, in fact, AIDS is caused by a virus, that blacks are not inferior to whites, that American Indian tribes have no relationship to the Israelites and lacked chariots, and that earthquakes are caused by geological activity. The First Amendment does not forbid the government from saying that there is no documentary evidence (or no fossil evidence or no eyewitness evidence) for P, even though P falls within a religious doctrine–and the Amendment cannot sensibly read to require this, because it would make all communication and all activities impossible. The most arbitrary claims would be insulated from challenge, and each person would have a heckler’s veto over government’s actions–the more irrational and mystical, the better.

To put it a bit more technically, if proposition P can be supported by religious argument R and also by secular argument S, government is entirely within its constitutional authority to take an official position on P on the basis of S. In fact, it’s even entitled to throw people in jail for P. But it may do nothing whatsoever on the basis of R. It may not support or oppose or endorse it. That’s why the government can make it illegal for people to use intoxicating drugs–even if they do so for religious purposes–but why it may not prosecute faith healing, even though faith healing is obviously fraudulent bunk.

Now, let’s play “name that logical fallacy” (to steal from our friends at the Skeptic’s Guide): “[E]ither ID is a religious viewpoint that is unconstitutionally opposed, inhibited, and disapproved when this textbook is used in public schools,” writes Luskin, “or ID is not a religious viewpoint and is thereby fair game for all forms of government-sponsored attacks, disparagement, hostility, as well as endorsement.” This is all very clever, no doubt–it is, as Lincoln once said, the kind of logic whereby a horse chestnut turns out to be the same thing as a chestnut horse. It’s the fallacy of the false dichotomy. In fact, ID is a religious viewpoint masquerading as a scientific theory–it is a religious position which is layered in factually untrue or arbitrary assertions. Government is entirely free to denounce the factually untrue statements and explode those arbitrary assertions. No, it cannot say that God does not exist, and it cannot say that man was not created by God through some guided process. On that, Luskin is correct. But government violates no law when it says (and rightly) that there is no factual basis for ID’s scientific claims.

It’s amazing that Luskin can get 88 pages out of this silliness–even if it is through Liberty University. But the bottom line is this: government may inhibit (short of censorship or compelled speech), oppose, and disapprove of any factual proposition whatsoever–including factual propositions that religious groups have taken a position on–so long as it does so from a secular background.

*–Update: I feel so bad. Vulcan was not the god of earthquakes; that was Poseidon/Neptune. I did not mean to denegrate, oppose, or disapprove of this non-materialistic explanation of earthquake generation, and I sincerely apologize to all members of the Supreme Council of Ethniokoi Hellenes.

Of interest to our fellow defenders of science: Steven Barrett, the proprietor of Quackwatch, is being sued for $10 million for criticizing pseudoscience, and he’s asking for donations to help in his legal defense.

Our friend Francis Beckwith has published a new article in the University of St. Thomas Journal of Law And Public Policy, which goes on for some thirty pages to show that he isn’t and never was, and really wasn’t ever and really isn’t and never even came close to being an advocate of Intelligent Design, and so forth. Normally, such self-indulgence would not merit notice, but in the process, he drops a few entertaining knee-slappers.

My own favorite is his criticism of the Kitzmiller decision-or, rather, of the “endorsement test” in Establishment Clause jurisprudence. The “endorsement test” is simply the rule that the Constitution bars the government from engaging in activities that send the message that the government endorses some religious belief or other. One obvious question is, message to whom? The answer can’t, of course, be the hypersensitive, or the complete ignoramus, but our old stand-by, the reasonable person.

Now, the reasonable person is a very old concept-indeed, it’s the cornerstone of whole areas of the law. It is, of course, a hypothetical construct, not an actual person. As humorist A.P. Herbert famously put it, the reasonable person

stands in singular contrast to his kinsman the Economic Man, whose every action is prompted by the single spur of selfish advantage and directed to the single end of monetary gain. The Reasonable Man is always thinking of others; prudence is his guide.… All solid virtues are his, save only that peculiar quality by which the affection of other men is won.…

He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or bound; who neither star-gazes nor is lost in meditation when approaching trap-doors or the margin of a dock…who never mounts a moving omnibus, and does not alight from any car while the train is in motion; who investigates exhaustively the bona fides of every mendicant before distributing alms, and will inform himself of the history and habits of a dog before administering a caress; who believes no gossip, nor repeats it, without firm basis for believing it to be true; who never drives his ball till those in front of him have definitely vacated the putting-green…never from one year’s end to another makes an excessive demand upon his wife, his neighbours, his servants, his ox, or his ass…never swears, gambles, or loses his temper; who uses nothing except in moderation, and even while he flogs his child is meditating only on the golden mean.…

I have called him a myth; and, in so far as there are few, if any, of his mind and temperament to be found in the ranks of living men, the title is well chosen. But it is a myth which rests upon solid and even, it may be, upon permanent foundations. The Reasonable Man is fed and kept alive by the most valued and enduring of our juridical institutions–the common jury.

The reasonable man is not expected–in tort law, constitutional law, or anything else–to be omniscient and perfect. The question is whether a hypothetical rational person, with the relevant information and background, would understand the government school to be endorsing the truth of a religious proposition. While subject to legitimate criticism, this is at least a reasonable way to approach Establishment Clause questions. But Beckwith, whether out of ignorance or a desire to misrepresent the law, would prefer to caricature it. He writes that the reasonable person “would exhibit ideal epistemological excellence,” and would “not be limited by biases.” He oh, so cleverly asserts that the Judge Jones’s use of this common legal device was hypocritical, because “[t]he ROO [‘reasonable objective observer’] would seemingly possess…a ‘God’s Eye point of view,’” and therefore, “in order to expunge the divine, or at least allusions to it, from the public schools, Judge Jones requires the divine’s assistance, or at least the assistance of a hypothetical deity.”

This is worse than a straw man–it is a juvenile attempt to make a joke at the expense of logic and the law. Indeed, it is the only “argument” that Beckwith offers against the use of the reasonable person standard in Establishment Clause jurisprudence. All for the purpose of introducing levity and silliness into a scholarly proceeding, Beckwith indulges himself by mischaracterizing the reasonable man standard, and, without bringing any substantive criticism, or even explanation of his objections thereto, simply throwing this straw man overboard.

Meanwhile, he shamelessly misrepresents what Judge Jones’ opinion actually says. For the record, Jones was not seeking to, and did not, “expunge the divine, or at least allusions to it, from the public schools.” He faithfully applied existing precedent that enforces the Constitution’s absolute prohibition against government funding the propagation of religious opinions, or promoting them as true. Allusions to the divine are perfectly constitutional and perfectly routine, in the context of a literature or history class, where tax dollars may be, and are, spent teaching children about religion. But it is neither appropriate nor legal for the government to spend tax dollars finding clever methods to tell children that some religious doctrine or another is the truth.

Yet Beckwith happily continues stacking straw men. Another–and one that is a constant theme with Beckwith, and fully justifies Barbara Forrest’s dismissal of him as simply a non-epistemologist–comes when he repeats his now hoary assertion that science’s “methodological naturalism” is somehow unjustified, or, to be more precise, that methodological naturalism is just one way of knowing, and shouldn’t be “privileged” over “explanations” of phenomena that rely on supernaturalism and magic instead. Beckwith writes that he once believed

that the best way to understand ID is to see it as a counter to the hegemony of philosophical materialism that some thinkers believe is entailed by Darwinian evolution as well as a particular understanding of science. It is a view of science that maintains that the hard sciences are the best or only way of acquiring exhaustive knowledge of the natural world and its genesis and that these sciences, in order to function, require methodological naturalism.

We’ll lay aside the obvious fact that few if any scientists (or others) claim that the “hard sciences” are the “only way” of gaining “exhaustive” knowledge. As I’ve explained at length elsewhere (and Forrest has explained better than I) methodological naturalism is not just one among other possible ways of knowing. It is employed because it has consistently shown that it yields results–predictable hypotheses, working technologies, and all that. Praying to the rain god doesn’t increase crop yields; figuring out how fertilizers work does. But more. Naturalism doesn’t just produce better results, it is also preferable from the outset. Its “hegemony” is not based simply on the overwhelming evidence that it succeeds where other approaches fail. It is also based on the fact that the world into which we are born is full of natural phenomena that impinge on our senses and call for explanations–that is, accounts. Assertions that magic did it are not explanations, they are mere dazzle and mystery. They account for nothing. Moreover, given the obviousness of the material world, it appears prima facie that such explanations should be in terms of the natural world. Maybe there is some other dimension necessary for explaining natural phenomena, and maybe some other method is better suited to explaining them. But if so, the person who makes that assertion who bears the burden of production to justify that claim. The teapot orbiting Pluto doesn’t just stand for observable entities–it also stands for thought processes. Material explanations for phenomena are a natural baseline; they are the starting point of our knowledge of the world. If there is some other dimension, and some other epistemology, it is up to the person who claims such to prove it. That’s just how logic works…unless Beckwith wants to reject logic, too, as simply one among many possible methods that unfairly enjoys “hegemony.” Don’t laugh. Some of his allies…er, former allies?…er, something.…have done just that.

As long as logic remains with us, it is the person who claims that there is an invisible Man in the sky, tinkering with the physical makeup of animals, who bears the burden of showing that the natural world we automatically see around us falls short for some reason. And Beckwith has demonstrated that if anyone’s going to satisfy that burden of production–it ain’t Frank Beckwith.

(Cross posted at Freespace)

Okay, this is classic Casey Luskin. He recently published a law review article of minimal interest in the Hamline University Law Review, about “teaching biological origins,” which as we know means, “finding some clever way to pretend that creationism is science so that we can teach it in biology classes in violation of the law.” He’s posted a couple paragraphs of the article over at DI’s blog. Here he mentions a case called Segraves, in which a California court rejected a Free Exercise Clause challenge against a school district for teaching evolution–that is to say, the court correctly held that teaching evolutionary science in a government school does not violate a person’s right to freely exercise his religious beliefs. But here’s Luskin’s interpretation: “This opinion is of minimal value as precedent, as it comes from a lower state court and was never officially published as a legal opinion. Nonetheless, it implies that evolution education policies may avoid establishing religion when they are based upon the legitimate secular purpose of avoiding dogmatism in the classroom.”

So, in other words, an unpublished, and therefore unciteable, decision by a trial court, which is therefore not precedent for anything, really, but which upheld the teaching of evolutionary science, is somehow precedent for the DI’s mission of teaching religion masquerading as science on the taxpayer’s dime. I have nothing against the trial court’s decision in Segraves, obviously, but it’s not exactly the strongest court opinion to cite for anything, least of all in the service of Luskin’s badly disguised defense of creationism.

You can read the Segraves decision here.

The Onion‘s “Top 10 Stories of The Last 4.5 Billion Years” includes this instant classic.

From our good friends at The Onion…

(HT: CK)

Darwin: A Life in Poems is a gentle collection of lyrics by noted British poetess Ruth Padel, who happens also to be a direct descendant of Charles Darwin himself. Her poems are based on his letters and books, and frequently incorporate these and other original sources, along with helpful explanatory notes in the margins.

Now those nasty Darwinists are coming after our band t-shirts!

You’ll recall that the Institute for Creation Research—the creationist outfit that purports to award advanced degrees in the sciences—has filed a lawsuit against the Texas Higher Education Coordinating Board, objecting against its decision not to authorize the ICR’s granting of degrees. As I observed earlier, the original complaint in the case was 67 single-spaced pages long, and included 86 footnotes, including one that took up an entire page. It was a masterpiece of how not to write a complaint.

Well, the federal court didn’t take lightly to that, and ordered the ICR to file an amended complaint that complies with the Federal Rules of Civil Procedure, and the ICR has now done so. The new complaint is 20 double-spaced pages…but it is 20 pages of non-stop, thigh-slapping hilarity. It contains language that appears to be randomly cobbled together through some sort of Lawyer Phrase Generator, and which I defy any member of the bar to explain in sensible terms: “There are still 2 state statutes that are potentially dispositive (in a manner favorable to the [ICR]) as to issues of ‘first impression’, so this Court needs to make some Erie v. Thompkins guesses thereon.” What the hell does that even mean?

The word “herein” is sprinkled randomly throughout, rather like the way Miss Teen South Carolina sprinkles “such as.” It occurs four times on page 2 alone–including “venue herein,” whatever the heck that means. There are italics, boldface, ALLCAPS, and all sorts of different combinations herein, of course. There are delightful spelling errors (“advertizes”), rhetorical flourishes (“as if with a ‘scarlet letter’”), and neologisms (I can’t decide if “favoritistically” or “applicational bounds” is my favorite). Of course it quotes the Bible. It even has rhetorical questions! In a complaint!

Now, judges get crap like this complaint all the time, and sadly for them, the liberal pleading rules generally require judges to allow the case to proceed if they can find somewhere in the complaint anything that would entitle the plaintiff to relief. That sometimes means doing the work of the plaintiff’s lawyers. If the court does anything like that here, it’ll face heavy work. But here is really the core of the ICR’s complaint: “[ICR] seeks declaratory relief that it may, as a matter of academic freedom…institutionally opine (as a matter of institutional academic speech),–that a given graduate student is worthy to be recognized as having earned [ICR]’s ‘Master of Science’ in ‘Science Education’ degree.…”

As I blogged before, I think there actually is something to this objection: the relationship of the state to educational institutions (however bogus) is not a simple one: an organization has a First Amendment right to grant titles to whomever it pleases–to declare John Smith to be a “deacon” or a “scholar” or what have you. And for the state to confiscate the use of certain terms (like “degree”) does implicate the constitutional rights of those organizations and the individuals who comprise them. The Texas Supreme Court held as much in HEB Ministries, Inc. v. Texas Higher Education Board, 235 S.W.3d 627 (Tex. 2007).

That’s a straightforward constitutional argument, and one worthy of being addressed by a court. But something tells me it won’t be addressed in this case, in which the ICR’s counsel alleges all sorts of virtually random causes of action. It seems to allege that the Texas Higher Education Coordinating Board violates the monopolies clause of the state Constitution, the Fourth Amendment’s searches and seizures clause, the due process clause, the equal protection clause, the freedom of speech clause, the freedom of the press clause, the freedom of association, the Texas Government Code, laws against defamation, the public emoluments clause, the Texas Religious Freedom Restoration Act, anti-discrimination laws, the Texas Education Code, and even the “no titles of nobility” clause of the U.S. Constitution! The complaint even argues that for the state of Texas to regulate higher education “interferes with interstate commerce” (emphasis original, natch).

Writing a complaint is not a hard task for a lawyer. The rules are clear. There are plenty of examples to copy. It doesn’t require rhetorical skill or eloquence–indeed, you are supposed to avoid these things. You don’t have to write footnotes (in fact, you shouldn’t). It’s something that any competent attorney can do. But the ICR’s complaint is just wackiness through and through. Creationists appear to be no better at law than they are at science.

(By the way, here’s an interesting civil procedure tidbit: the complaint seeks to allege causes of action under the Texas Constitution, but the defendants are being sued pursuant to Ex Parte Young. Under Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1980), a federal court has no supplemental jurisdiction to hear state constitutional claims in such an action.)