Establishment clause suit against UC Berkeley evolution website

"So I'm the bad guy. How did that happen?"

-- D-Fens in movie "Falling Down"



Background --
Federal courts have ruled that taxpayer status alone generally does not give standing to sue on an allegation that a government expenditure violates the Constitution. In Flast v. Cohen, 392 U. S. 83 (1968), the Supreme Court made an exception by saying that taxpayer standing is available in establishment clause lawsuits in particular. Then in Hein v. Freedom from Religion Foundation (2007), a three-justice plurality of the nine-justice Supreme Court held that taxpayer standing in establishment clause lawsuits should be available only for Congressional allocations of tax funds and not for executive branch allocations of tax funds -- even Fatheaded Ed Brayton called this arbitrary and nitpicking distinction between Congressional and executive-branch funding allocation "silly." These three justices, in combination with two more justices who held that the establishment-clause taxpayer standing granted by Flast should be eliminated completely (Justice Scalia, joined by Justice Thomas, wrote, "Flast should be overruled"), formed a court majority that ruled against granting standing to sue in the case. Hein is discussed here, here, and here on this blog.

In his concurring opinion in Hein, Justice Scalia wrote,

Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring *stare decisis* requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today’s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel.

Fast-forward: The website of the Pacific Justice Institute says,

May 12, 2008 - Pacific Justice Institute will present arguments this week to the Ninth Circuit Court of Appeals in a case challenging a federally-funded UC Berkeley website which promotes selected religious denominations that support evolution.

The lawsuit, filed by PJI in 2005, centers around a website designed by UC Berkeley to help teachers combat so-called misconceptions about evolution. The website tackles the "misconception" that religion and evolution are incompatible by claiming that "most" religious groups have no problem with evolution, and by directing visitors to statements from selected religious groups that support evolution. Meanwhile, the website derides religious beliefs that "contradict science" by teaching six-day creation. The site also warns teachers that student questions which expose the weaknesses of evolution "may be designed to disrupt the learning process" and should not be given the same respect as "legitimate" questions.

PJI is arguing that the taxpayer-funded UC Berkeley website unconstitutionally promotes certain religious groups at the expense of others. PJI Chief Counsel Kevin Snider, who will be presenting oral arguments to the Ninth Circuit on Wednesday, commented, "Whatever one's views on the origin of life or the theory of evolution, it is completely inappropriate for the government to declare that some religious denominations are better than others. The Supreme Court has long held that government must not decree what is orthodox in religion, and we are seeking to hold UC Berkeley to that standard."

Brad Dacus, president of Pacific Justice Institute, stated, 'Government actions that demean a group's faith clearly express state hostility toward religion and must be contested."

The title of the lawsuit is Caldwell v. Caldwell -- plaintiff Caldwell and defendant Caldwell are not related. The district-court opinion dismissing the suit is discussed in an article on Fatheaded Ed Brayton's blog. Fatheaded Ed does not allow me to leave any comments on his blog, so I can only make my comments here.

I assert that because of the following reasons, including reasons why Hein does not apply to Caldwell, the Caldwell decision is wrong:

(1) In Hein, the federal government was sued (Hein was the director of the White House Office of Faith-based and Community Initiatives) whereas Caldwell is just a suit against a state entity.

(2) In Hein, the plaintiffs challenged the expenditure of tax funds. However, the plaintiffs in Caldwell are not challenging the National Science Foundation funding of the UC Berkeley website but are challenging how the NSF funds -- and state funds -- are used by the UC Berkeley website. Hence, taxpayer standing in Caldwell is irrelevant because a ruling against UC Berkeley could not result in any tax reduction or refund for the plaintiffs (a favorite argument against taxpayer standing is that any tax reduction or refund that could result from a favorable ruling would be insignificant). Not every establishment clause suit needs to be a taxpayer suit. In lawsuits against a religious symbol on public property, it makes no difference -- or should make no difference -- whether the symbol is privately-funded or taxpayer-funded. Ironically, according to the topsy-turvy Hein ruling, there should be standing to sue when the symbol is privately-funded but not when the symbol is taxpayer-funded!

(3) The lawsuit in Hein challenged government officials' speeches, which the courts have no control over, whereas Caldwell challenges a website's fixed material, which the courts do have control over.

(4) The Caldwell plaintiffs did not assert taxpayer standing -- it was the defendants who raised the issue of taxpayer standing (see page 7 of the district court opinion).

(5) The district-court Caldwell decision was issued in March 2006, whereas the Supreme Court's Hein decision was issued later, in June 2007. Hence, the controlling precedent in the district-court Caldwell decision is Flast and not Hein, and even assuming arguendo that federal taxpayer status is the only basis of standing in Caldwell, Flast as commonly interpreted gave standing to sue in Caldwell (contrary to the arguments in the Caldwell opinion). The district court judge who decided Caldwell is not entitled to any Brownie points for a Supreme Court decision -- Hein -- issued after the Caldwell decision.

(6) Congress and the courts are not consistent about the "injured in fact" requirement -- the "citizen suit" provisions of environmental laws give all citizens standing to sue without any allegation that there is any actual or potential injury to anyone or anything, let alone actual or potential injury to the plaintiff(s) ! The plaintiff only has to allege that a government environmental agency failed to perform a non-discretionary duty.

(7) The Supremacy Clause says that the Constitution is the "supreme law of the land." To follow a "standing" requirement at the expense of the Constitution is like straining at a gnat and swallowing a camel.

(8)Flast v. Cohen is itself badly flawed. The Flast statement cited by Caldwell is " . . . . a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." (392 U.S. 83, 102 -- emphasis added). However, though the Supreme Court granted standing to the taxpayers in Flast, those taxpayers did not satisfy the preceding requirement. Also, I thought that the ruling in bold was established by Hein and not by Flast. I may comment more about Flast later.

(9) The "injury-in-fact" requirement is a misinterpretation of the "cases and controversies" clause of Article III of the Constitution. Anything can be a "controversy," including moot and hypothetical questions.

The appeals court decision in Caldwell won't be binding if that decision is not published (though FRAP Rule 32.1 says that the decision can be cited even if it is not published), so if that decision unfortunately upholds the district court decision but is not published, then another suit against the UC Berkeley website may be filed by another party.

I am now expecting an inevitable flood of invective from various trolls -- e.g. , Voice in the Urbanness, Kevin Vicklund, various Anonymous's -- saying that I know nothing about the law while they make no challenges to my above arguments.
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