It begins thusly:
This is a letter I sent to First Things today.
Dear Editors of First Things:
Robert T. Miller argues that Judge Jones’ decision in Kitzmiller v. Dover Area School District was correct even though Miller admits that Intelligent Design (ID) is not religion (Darwin in Dover, PA, April 2006). Miller’s conclusion is plainly a non sequitur. The Establishment Clause has one and only one purpose – to prevent the establishment of religion. If Miller is correct and ID is not a religion, a policy promoting the teaching of ID does not, by definition, operate to establish religion. Therefore, such a policy cannot violate the Establishment Clause. The inescapable conclusion given Miller’s own premises? Judge Jones erred when he ruled that teaching ID violates the Establishment Clause.
Miller argues that Jones’ decision was nevertheless correct – not because ID is a religion, but because “Intelligent Design does not belong in a science class.” (emphasis in the original) This conclusion is also wrong. Judges – especially federal judges – have a limited role in our constitutional democracy. They do not have a roving warrant to run around setting perceived errors in judgment aright. Judge Jones was entitled to strike down the Dover policy only if it established religion. Miller admits that it did not, because ID is not a religion. Therefore, Jones was wrong even if we grant Miller’s aesthetic judgment about the unseemliness of combining the teaching of two non-religious subjects (assuming arguendo that ID and science are different subjects) during the same class time. This becomes clear if we posit the combination of science and another academic subject that is not as emotionally charged as ID. For example, if the Dover school board had enacted a policy requiring all science teachers in the district to use the last ten minutes of each of their classes to teach music, the policy would have been stupid, but it would not have been unconstitutional. The citizens of Dover’s remedy would have been to throw the rascals out at the next election and hope the new school board would repeal the policy. Their remedy would not be going to court to have the “science and music” policy struck down as unconstitutional...