Friday, September 29, 2006


Judge Jones on the Public Expressions of Religion Protection Act

On Tuesday, the House passed the Public Expressions of Religion Protection Act. The bill bars judges from awarding legal fees to the American Civil Liberties Union and similar groups that sue municipalities for violating the Constitution's ban on government establishment of religion.

Had this law been in effect last year, it would have made it nearly impossible for the group of 11 Dover parents to overturn the school board's mandated teaching of intelligent design there, and that's exactly what right-wing Republicans in the House have in mind.

Caroline Fredrickson, director of the ACLU's Washington legislative office, told the Washington Post that the measure is "election-year red meat for the Christian right, because they've been complaining they haven't gotten enough from this Congress."

It just so happens that Judge Jones, who presided over the Dover trial, was scheduled to speak at the University of Kansas the day after the House passed the bill. Dr. Leonard Krishtalka, Director, Natural History Museum and Biodiversity Research Center, asked about it at a dialogue with Judge Jones on Wednesday.

Red State Rabble covered Jones lecture on Tuesday, but we weren't in attendance Wednesday, we do have this eyewitness report from reader BH:

Judge Jones was appropriately circumspect on the question--the legislature makes the laws and can do what they want. He did note that this is only the latest instance of similar attempts to "rein in" the judicial branch (some of which would have been much more problematic constitutionally) -- none of which have gone anywhere.

He also noted that the House and Senate often play out the roles expected by the writers of the Constitution, in which the House is prone to radical actions that are moderated by the Senate.

The aspect of the story he did focus on--as another example of public ignorance about the role of judges--was the assertion that he "awarded" $1 million in legal fees to the plaintiff's attorneys on his own.

In fact, when the case was initially filed it was done under the provisions of a federal law that stipulates the losing party will be responsible for costs of the litigation. Which is why Congress is free to change the law--though the`reason for the law in the first place was to provide some teeth to discourage violations--after all, if they lost the case, it means they really were doing bad things.

In fact, because the pro-ID school board members were voted out before he issued his ruling in the case, the ACLU and Americans United attorneys agreed to ask for only half their actual fees and expenses.

All he did was approve an agreement between the two sides. Interestingly, Judge Jones had been so angered by the blatant lies told by some of the former board members in sworn depositions that he referred them to the local district attorney for possible prosecution for perjury as well as calling them out in his ruling.

If they had been honest in their depositions, it is possible that the case would never have been brought to trial--it would have been too obviously a loser--and the judge would have issued an injunction against the policy.

The fact that the board didn't have to pay for its defense--thanks to the Thomas More Foundation--probably emboldened them to fight it out. If the current board wanted to do it, the perjury would probably be sufficient basis for them to sue them to recover costs.

It appears they'd rather move their community past this debacle rather than prolong the distraction.

BH adds these observations:

Judge Jones was asked why he decided to rule on the broader question of ID-as-science rather than limiting himself to the narrower grounds of blatant religious motivation by the board majority.

His reply was that the lawyers and expert witnesses on both sides did such a good job of presenting the arguments that he was able to do it -- and his goal was to thereby help spare other communities the waste of money and time the trial represented for Dover.

He also said that he had not deliberately set out to expand the scope of legal argument on creationism. That application came from his evaluation of the evidence, again to the credit of the lawyers and witnesses who provided the material.

Finally, he was asked how the trial had changed him personally. Echoing his comments from the evening talk, he said the attacks on him and his decision have made him aware of how little the public understands what a judge actually does--hence his determination to speak publicly.

Judge Jones' visit did give me some reason to hope, at least with the current state of the federal judiciary, adds BH. Last winter, when the NCSE lawyers came to Lawrence after the Dover decision, I [BH] asked whether he was an exception. In their experience, he's not. But I do think Judge Jones may be among the very best as a writer, a task he takes very seriously. He told us that he tries to very hard to write all his decisions in plain language and to avoid legal jargon as much as possible. He went through many drafts of the final paragraph of his decision to get it just right--probably the reason it's been quoted so often.


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