April 28, 2009

A Modest Victory

Posted in Atheism, Creationism, Law tagged , , , , , , , , , , , at 4:02 pm by Andrew

In the ongoing saga over the ICR’s ridiculous, ill-founded, written-in-crayon lawsuit against the THECB, we’ve won a tiny little victory, at least.

The ICR’s moronic press release has been taken down from the front page of their website and deleted from their news archive.

You can still access the article from the direct url — for now. But there doesn’t seem to be any other way to find it. It looks like the ICR follows the Uncommon Descent “down the memory hole” philosophy of dealing with embarrassing facts.

(Note that the lawsuit press release has a permalink number of 4598, which should place it in between the story about how retinal coordination is a “Picture Perfect Presentation of Design” and “Chimp Study Reveals Humans Are Uniquely Wired.” But I’m sure that the ICR folks just had to get up that timely refutation of Neil Shubin’s 2008 book. Incidentally, if you haven’t read Your Inner Fish, you should click on that link and order it.)

I’m sure that this site sending ICR nearly 6,000 hits since last Friday had nothing to do with this decision…. 🙂

So pat yourselves on the backs, guys. And go help PZ win an iPod Touch from creationist Eric “Baby Dr. Dino” Hovind.

April 27, 2009

Questions I Can’t Answer (About the ICR)

Posted in Atheism, Creationism, Law tagged , , , , , , , at 10:07 am by Andrew

In the discussion of the Institute for Creation Research’s (“ICR”) lawsuit against the Texas Higher Education Coordination Board (“THECB”), as well as the ICR’s press release, commenter Quinn asks a question that I (mostly) can’t answer:

Why are these guys in Federal Court? Wouldn’t they be much better off using Texas’s mini-RFRA (http://www.legis.state.tx.us/tlodocs/76R/billtext/html/SB00138F.htm)?

Great question.

My first impulse (before reading the statute) was to suggest that the Texas RFRA might not provide the ICR with the relief that it wants. But no, a quick look at the statute itself shows that’s not the case:

* Sec. 110.002 provides that the statute applies “to any ordinance, rule, order, decision, practice, or other exercise of governmental authority.” The THECB’s determination not to award a Certificate of Authority to the THECB clearly falls within this section.

* Moreover, sec. 110.005 entitles a plaintiff under the TRFRA to seek, inter alia both injunctive and declaratory relief, which is all the ICR is seeking in its 1983 action.

* As an added bonus, the TRFRA expands upon Supreme Court jurisprudence regarding the free exercise clause, effectively distinguishing the Employment Division v. Smith standard I discussed in my last post on the subject. Specifically, section 110.003(b) places the burden on the government to demonstrate that the action challenged:

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that interest.

[emphasis added]

That’s a huge difference from the Smith standard that applies in 1983 cases, in which all the government need do is show that a law is facially neutral and designed to further a legitimate (not “compelling”) governmental interest.

In sum: Quinn has found a much stronger indictment of the ICR’s incompetence than I raised in my first two posts on the subject. On face, it appears that the TRFRA is a much better vehicle for advancing the ICR’s claims than 42 U.S.C. 1983.

I should add that the TRFRA does not solve many of the initial weaknesses I highlighted in the ICR’s lawsuit; it doesn’t appear to waive the requirement for administrative exhaustion, so that’s still a problem. And it doesn’t solve the massive, open-ended scope of the “injunction” the ICR seeks. But certainly the ICR would have been no worse off (and potentially, much better off) adding a TRFRA claim to their initial complaint.

Finally, I should clarify that ICR could bring a state law claim under the Texas statute in federal court alongside their sec. 1983 claim; that’s called “pendent” jurisdiction, and generally, so long as the claims arise out of the same set of facts, a federal judge will also keep state law claims in federal court so as to avoid having two lawsuits proceeding at the same time in two different jurisdictions. So the dichotomy isn’t quite what Quinn suggests; the ICR could stay in federal court and still bring a complaint alleging both federal and state law claims.

Of course, this only begs yet another question (that I can’t answer) — why does the ICR want to be in federal court in the first place? In general, federal courts are more defense-friendly, they’re more willing to dismiss cases, the judges are smarter, and they’re less likely to entertain nonsense suits. Plus, I’m assuming that Mr. Johnson, J.D.’s family law practice has probably brought him into more contact with the state bar and the judges who sit on the various state District Courts than it has with the federal judges. So I’m left scratching my head as to why the ICR would want to be in federal court at all.

Great question, Quinn. Sorry I can’t answer it!

April 25, 2009

The Other Side Speaks!? Freepers (Try) to Defend the ICR

Posted in Atheism, Creationism, Law tagged , , , , , , , at 9:59 am by Andrew

In the interest of full disclosure, defenders of the ICR are out — if in somewhat less than full force — at FreeRepublic. You can see the comment thread humming along nicely, brimming with “how-dare-those-atheists-make-fun-of-our-font-size”… until a freeper who also happens to be a lawyer shows up. Oops! 🙂

I don’t care how much you hate atheists — and for these guys, it’s a lot — there simply aren’t glasses rose-colored enough to make someone believe that the ICR is going to come out on top of this dispute.

My favorite bit:

Wow, I just read though the article. For ranting and raving it wins a gold medal. For actually providing a discernable argument it fails utterly. ICR won in Federal court when California tried to do the same thing some years back, so one would expect they know exactly what to do to win again. This critic is going to look very foolish, I expect.

Since the ICR settled out of court in California in exchange for a religious exemption from the law, this is actually a pretty strong point… for the atheist. Of course, you wouldn’t know this if you only read ICR’s own ridiculous account of the lawsuit.

April 23, 2009

The ICR Answers All Your Questions!

Posted in Atheism, Creationism, Law tagged , , , , , , , at 12:41 pm by Andrew

In the comments section of the post analyzing the Institute for Creation Research’s recent lawsuit against the Texas Higher Education Coordination Board, there’s a significant amount of speculation as to what the ICR really hopes to achieve and how they really view their arguments.

Fortunately for us, the ICR has a new post up at their web site, written by the same lawyer who authored the ICR’s Texas complaint (James J.S. Johnson). It answers all our questions!
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April 22, 2009

You Don’t Trust Creationists With Your Science Education… Here’s Why You Shouldn’t Trust Their Lawyers, Either

Posted in Atheism, Creationism, Law tagged , , , , , , , at 11:36 am by Andrew

Okay, some quick background on the issue, taken from NCSE Reports, Mar-Apr 2008.

In 2007, the Institute for Creation Research (ICR) — that’s the headquarters for pure, unadulterated, Henry Morris crazy — moved its headquarters to Dallas, Texas, and requested that the Texas Higher Education Coordination Board (THECB) permit ICR to offer a master’s degree in science education. This request was for a “state Certificate of Authority,” which is somewhat different than “accreditation” (as this story was sometimes reported).

Fortunately for sanity, on April 24, 2008, the THECB unanimously voted to deny ICR’s request. And that should have been the end of it.

Oh no. Late last week, ICR sued the THECB (and, bizarrely, their officers in their individual capacities) in federal court for an injunction requiring THECB to issue the Certificate of Authority and permit ICR to issue Master of Science degrees in science education. The full complaint can be found online, here.

I am a practicing attorney who specializes in civil litigation (like this) and I have a J.D. from Harvard Law School. I am not admitted in Texas — although I have litigated several matters in that state. So I think I am particularly qualified to weigh in on this lawsuit. Obligatory disclaimer: nothing in this blog post constitutes legal advice or an attorney-client relationship; the opinions I express herein are my own and no one else’s. Now, on to the show:
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