Talk origins (thank you for the link!) has posted the Amicus Curiae brief filed by various educational and scientific interest groups in support of the challenge to the anti-evolution stickers in the Selman v. Cobb County School District case.
For non-lawyers, typically only the people with a direct stake in the outcome are allowed to participate in a lawsuit. These are the plaintiff and defendants and are collectively referred to as “the parties.” Outsiders, curiosity seekers and interest groups are not generally permitted to participate as parties if they don’t have a direct interest in the outcome. An exception to this general rule is what is known as an amicus curiae brief.
Amicus curiae literally means “friend of the court” and connotes an image of a disinterested but knowledgeable outsider. By permission only, the amicus curiae is permitted to file a brief with the court. The court has wide discretion in granting or denying permission for filing of such briefs. Nevertheless, in cases of widespread public interest, a court will often accept briefs from a wide range of outside individuals and organizations interested in the outcome. In fact, acceptance of various amicus curiae briefs is another way to subtly bulletproof a decision by indicating that the court at least considered the input from a multiple viewpoints.
Nobody actually believes the connotation that the amicus curiae briefs will be disinterested. They are expected, however to be knowledgeable. Also they are expected to be BRIEF. Now, to many non-lawyers, “legal brief” is a classic oxymoron. In reality there are strict page limitations on most legal briefs. In particular, amicus curiae should not tax the court’s patience by being verbose. The effective amicus brief should make its point and address the broader policy and social issues that are likely to be overlooked or ignored by the parties, who, after all, are only interested in winning this one case.
The Amicus Brief submitted by the Colorado Citizens for Science is a superb example of an effective amicus brief. First, it is indeed short--10 pages. Next, it addresses several common creationist mischaracterizations of evolution. The brief points out that Intelligent Design proponents misrepresent evolution as “just” a theory, when it is both a fact and a theory. Also Evolution is not a theory of universal cosmic origins as is often misrepresented. For these reasons, the proposed sticker is inaccurate and singles out evolution as suspect or somehow deficient or second-tier. These inaccuracies alone are not enough to invalidate the sticker, but if the sticker is part of an overall strategy to subvert scientific knowledge that conflicts with fundamentalist religious beliefs, then the court could find the stickers are unconstitutional. The brief makes this point succinctly.
What I loved about the brief was its reliance on Daubert v. Merrell Dow Pharmeceuticals. Daubert doesn’t directly apply to science teaching in public schools. The Daubert case addressesthe separate issue of the admissibility of scientific evidence in the courtroom. In Daubert the U.S. Supreme Court cautioned judges that they must be the gatekeepers against junk science being introduced into the courtroom. The Daubert decision then provided several criteria to determine whether the proffered expert scientific testimony is based on legitimate science. My personal opinion is that Intelligent Design fails to qualify under the Daubert analysis and the motives for offering it in school are correspondingly suspect, so I'd recommend raising Daubert in any litigation involving Intelligient Design creationism.
The Amicus Brief didn’t explicitly make this but they do use Daubert to rebut two tactics used by creationists. First, the brief addresses the claim that a scientific controversy exists, and therefore the controversy should be taught in school. Daubert recognizes that such controversies are often manufactured and that a trial judge cannot abdicate the responsibility to resolve the controversy in favor of legitimate science. Second, Intelligent Design often compiles a list of scientists who “doubt evolution.” It is a sad commentary that anybody can find an “expert” to testify their way on any subject in court. Trial judges routinely address exactly this problem in evaluating experts in the courtroom and truth is not determined by numbers of crackpots on one side or another. Daubert recognizes that just because the person is an “expert’ doesn’t mean necessarily that the science is any good at all and two proponents of junk science are not better than one. The brief highlights this with the Project Steve List, which makes the point understandable to any federal judge who has ever had a bogus expert in the courtroom.
Finally, the brief makes clear that the attack on evolution is religiously based, despite now implausible claims to the contrary.
Overall, a very good brief that achieved a great result.