A. Rickey wonders why the judge who found intelligent design teaching in Dover, PA to be unconstitutional has a problem with an activist school board:
When someone is concerned about judicial activism, that person is not merely worried about the existence of politics in the world--unless he's an idiot, I suppose--but that representative politics are being subverted by unaccountable judges perverting texts through "interpretation," particularly where such interpretation can only be overruled by supermajorities. A school board, on the other hand, is more like a mini-legislature that passes instructions then carried out by others. If a democratic polity and its elective representatives believe that a constitutional imperative has been misconstrued, this is precisely where activism should be: in a politically accountable branch subject to removal by voters. The political arena allows them to settle large and divisive societal disputes in a way that is more likely to be seen by the losers as legitimate.
Specifically, the judge opines, "[T]his case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy." At least in the opinion's depiction of how the policy came to be adopted, it began with Alan Bonsell's joining the school board and declaring that he wanted restore prayer and the teaching of creationism. He met with the science teachers to discuss how evolution was taught, which no administrator or board member had ever done before. Board member William Buckingham then contacted the Discovery Institute to figure out how Bonsell's preferences could be legally enacted as policy.
None of this appears to have been the result of a widespread grassroots movement by the Dover polity; as the board moved toward changing its curriculum, it sent newsletters to every house, which mailing contained misinformation about both evolutionary theory and ID. Nor do the losers appear to have seen their loss as legitimate, considering that of the nine members of the 2004 school board, five resigned over the controversy. A married couple resigned first, saying,
There has been a slow but steady marginalization of some board members. Our opinions are no longer valued or listened to. Our contributions have been minimized or not acknowledged at all. A measure of that is the fact that I myself have been twice asked within the past year if I was Ďborn again.í No one has, nor should have the right, to ask that of a fellow board member. An individualís religious beliefs should have no impact on his or her ability to serve as a school board director, nor should a personís beliefs be used as a yardstick to measure the value of that service. However, it has become increasingly evident that it is the direction the board has now chosen to go, holding a certain religious belief is of paramount importance.The second, who had initially supported the idea of enlarging what was taught beyond evolution, left with the words
I was referred to as unpatriotic, and my religious beliefs were questioned. I served in the U.S. Army for 11 years and six years on the board. Seventeen years of my life have been devoted to public service, and my religion is personal. Itís between me, God, and my pastor.According to court testimony, "Angie Yingling was coerced into voting for the curriculum change by Board members accusing her of being an atheist and un-Christian," and Ms. Yingling resigned in protest shortly thereafter. A lifelong Dover citizen also claimed that the controversy has "driven a wedge where there hasnít been a wedge before. People are afraid to talk to people for fear, and thatís happened to me. Theyíre afraid to talk to me because Iím on the wrong side of the fence."
While all this may be democratic, it strikes me as typical of the worst aspects of democracy that the Founders feared and tried to counter with Constitutional provisions such as an unelected judiciary. It also puts me in mind of a remark UT Law professor Douglas Laycock -- a staunch defender of religious liberties who litigated for the Religious Freedom Restoration Act -- made at an Emory conference (available at 12 Emory Int'l L. Rev. 951):
Decentralization aggravates the risk that the most serious religious liberty problems will occur somewhere, if only locally. Consider actual hostility to some religious groups. This problem does not arise often here, but when it does arise, this decentralization increases the risk of small scale local regulation on the basis of that hostility. A set of bigots can take over one agency or one local government; they are quite unlikely to take over a state or the Congress.