For those who don’t know Selman, it’s the Cobb County anti-evolution school sticker case currently on appeal. An amicus curiae brief is actually a Latin euphemism, for “friend of the court.” The legal fiction is that these briefs are by neutral third parties, and therefore more likely to be even handed than those of the actual combatants. In the real world, these briefs are usually by concerned interest groups, whose interests may be broader or different that those of the litigants, but certainly not “even handed.” Since such briefs are not submitted by litigants, the court doesn’t need to accept them or read them. For that reason, the term “brief” is not a legal oxymoron in this situation. Good amicus briefs are concise, making a few key points, and don’t attempt to cover the entire case. The NCSE brief is a great amicus brief.
The strength of this brief is that it demonstrates that anti-evolution efforts in education have a very long history. This is important. “Teach the controversy” sounds like a very reasonable statement unless you understand the decades long effort to create the controversy when none exists in the first place as the excuse to teach only half the controversy that should never have been taught.
The brief observes that there has been at least three
generations of religions based creationist attacks on the teaching of evolution
in public schools. The “first generation” was the prohibition of teaching
evolution in public schools. This was banned by Epperson v Arkansas.
Creationism then moved to the "second generation"—balanced treatment laws. Under such schemes, evolution and creationism were to be given equal time or equal weight. This approach was shot down in Edwards v. Aguillard. Selman represents the “third generation.” The stickers are part of an overall plan to diminish scientific ideas on religious grounds and endorse specific religious beliefs. This is a fair summary of the Wedge Strategy.
As I previously noted, one key point of the trial court’s decision was its recognition of sham arguments being made in support of the school stickers. Francis Beckwith has argued that inquiries into religious motivations of ID supporters are prohibited legally and not relevant logically (see comments 25995 and 25999). He is correct that usually religious beliefs of individuals in legal proceedings are irrelevant. However, there is a common exception to that general rule. That exception occurs when the ostensible reason offered for a policy, such as the stickers, is non-sectarian, but is, in fact, a sham for the actual religious reasons underlying a policy.
Courts frequently deal with sham transactions. A typical situation is a sale of assets from one business entity to another just prior to the first entity’s business dissolution. Was this just waht it appears to be, a sale in the ordinary course of business or, is it a disguised attempt to put assets beyond the reach of creditors? Courts typically look for certain facts common to fraudulent conveyances, such as below market sales prices, “installment” payments, and transactions between relatives. These are called “badges of fraud.” The mere presence of one is not dispositive, but as more badges appear in the transaction, the more likely the court will set it aside as a sham. Clearly, the state of mind of the involved parties is relevant in determining sham transactions of any kind. Feigned ignorance of the benefits of the sham is another typical badge of fraud. (“I didn’t know there could be tax consequences!”) Consequently, when religious individuals attempt to palm off some matter such as Intelligent Design” as non-religious, a court is entitled to determine if the proffered claim is a sham. Stated incuriosity about the identity of the designer, for example, is an obvious “badge of fraud.” Mr. Beckwith is simply legally wrong when he claims that courts cannot examine religious motivations in such circumstances.
The trial court in Selman clearly recognized that the stickers were a sham for religiously- based interference with the teaching of science. The sham arguments being made were that the stickers were merely intended to “promote critical thinking” and stress that evolution is “merely a theory.” The trial court rejected the argument that these were the real motivation and not intended to promote religion generally or any particular religious teaching in particular. In short, the stickers were a sham.
The Amicus brief’s discussion of the history of anti-evolution efforts is so important because the history identifies some of the hallmarks of creationism, a better term in this context than badges of fraud, but the two concepts are identical. Now that the Court of appeals has the historical context, it is easy to see that the hallmarks of creationism are the same whether the proponents identify themselves as Biblical Literalists , Six day Creationists , Scientific Creationists, Intelligent Design Theorists or even Post-Darwinists. The hallmarks of creationism employed by each of these groups of proponents are exactly the same.
For example, referring to evolution as merely a theory, not a fact, is a hallmark of creationism. (See Brief, p. 21, fn 2). So is the claim that “students should think critically about evolution.”
The Brief also effectively used the history to link
Scientific Creationism, addressed by Epperson and Edwards, with the Institute
for Creation Research and the Discovery Institute’s claimed Intelligent Design
Program, showing that each employed the same hallmarks of creationism
recognized by the trial court in this case and by the appellate court in Freiler v. Tangipahoa Parish Board of Education. Since the only difference between this case and Freiler is that the Freiler discalimer was oral and Selman's was written, thie trial court's decision should be upheld.
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