Caldwell v. Caldwell is a travesty, Part 2

For a larger image, click on above picture

The homepage of "Understanding Evolution for Teachers." The plaintiff in Caldwell v. Caldwell could not be sure which topics to avoid on this homepage in order to avoid seeing an offensive religious message -- for example, such a message is likely to appear under the topic labels "misconceptions," "overcoming roadblocks," "nature of science," and even "teaching evolution."

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Part 1 is here.

The appeals court opinion in Caldwell v. Caldwell says (pages 9-10),

In Buono [Buono v. Norton, 371 F.3d 543 (9th Cir. 2004)] , the plaintiff, a retired employee of the Park Service who had been Assistant Superintendent of the Mojave National Preserve and regularly visited it, complained that a Latin cross atop Sunrise Rock violated the Establishment Clause and was offensive to him. He regarded the cross as offensive because it was on federal property — not because of the cross as such — and the district court found that Buono would tend to avoid Sunrise Rock as long as the cross remained standing. We held that Valley Forge “drew a distinction between abstract grievances and personal injuries, not ideological and religious beliefs,” 371 F.3d at 547, and that Buono’s inhibition from freely using the Preserve sufficed as injury in fact and constituted “personal injury suffered . . . as a consequence of the alleged constitutional error.” Id. (quoting Valley Forge, 454 U.S. at 485) [Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)] . (boldness added)

What? "Drew a distinction between abstract grievances and personal injuries, not ideological and religious beliefs"? What in the hell is that supposed to mean? That is really getting arbitrary, capricious, nitpicking, and hairsplitting -- it is all basically just a "right" to not be offended.

The Caldwell opinion continues (page 10),

Since Buono, we have also considered standing to pursue an Establishment Clause challenge in the context of a government seal. In Vasquez v. Los Angeles County . . . .

The ridiculous Vasquez v. Los Angeles County case is discussed in Part 1.

Caldwell says (pages 10-11),

Caldwell’s situation does not fit neatly into a place already staked out along the continuum of Establishment Clause standing. She is neither so removed from the conduct challenged as the plaintiffs were in Valley Forge, nor so close as the plaintiff was in Vasquez. Her connection to the writing on the website is more tenuous than Buono’s to the Preserve where the offending symbol was a Latin cross that was permanently installed on a top of a hill, while her complaint is more abstract and her contact less forced than Vasquez’s.

The Caldwell v. Caldwell decision does not adequately distinguish between Jeanne Caldwell's situation and Buono's situation. Buono always knew where the cross was and he could avoid looking at it. However, Caldwell could not be sure which topics to avoid on the "Understanding Evolution for Teachers" homepage -- shown above -- in order to avoid seeing an offensive religious message; for example, such a message is likely to appear under the topic labels "misconceptions," "overcoming roadblocks," "nature of science," and even "teaching evolution." I will show below that Caldwell was also not adequately distinguished from Vasquez.

Caldwell says (page 11),

It is instructive to compare School District of Abington v. Schempp, 374 U.S. 203 (1963), and Doremus v. Board of Education, 342 U.S. 429 (1952), as the Supreme Court did in Valley Forge. 454 U.S. at 486 n.22. Schempp is the source of the rule which informed our decision in the seal case, that unwelcome direct contact with an allegedly offensive religious or anti-religious symbol, suffices for Article III standing.(boldness added)

See Vasquez, 487 F.3d at 1251-53. In Schempp, children enrolled in public school together with their parents objected to a Bible reading in the classroom that was mandated by state law. The Court found the interests asserted sufficient for standing because these plaintiffs were “directly affected by the laws and practices against which their complaints are directed.” Schempp, 374 U.S. at 224 n.9. This contrasts with Doremus, in which the same issues were raised but in which parents lost standing to sue when their children were graduated. 342 U.S. at 432-33 . . . . (boldness added)

As the Court explained in Valley Forge, “[t]he plaintiffs in Schempp had standing, not because their complaint rested on the Establishment Clause — for as Doremus demonstrated, that is insufficient — but because impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them.” 454 U.S. at 486 n.22. (boldness added)

How does Doremus show that resting a complaint on the Establishment Clause is insufficient? According to the above statements in Caldwell, Doremus raised the same issues as Schempp but the parents in Doremus "lost standing to sue when their children were graduated." So according to the above statements in Caldwell, all Doremus really showed was that plaintiffs can be declared to lose standing when challenged actions no longer directly affect them. But what does that have to do with Caldwell, where there is no claim that the plaintiff is no longer affected by the challenged action? Anyway, Jeanne Caldwell -- like Vasquez -- complained of "unwelcome direct contact with an allegedly offensive religious or anti-religious symbol" or message, and if anything, her complaint was less "abstract" than Vasquez's complaint about the county seal because the seal did not contain any offensive religious or anti-religious symbols or messages but was just a reminder that a Christian cross had been removed when the seal was redesigned.

Caldwell says (page 12) --

. . . .Caldwell’s offense is no more than an “abstract objection” to how the University’s website presents the subject . . . That she is the parent of school-age children makes her position no less remote, for her connection to the University of California website is not similar to the relationship in Schempp between parents whose children are directly exposed to unwelcome religious exercises in the classroom and the school district. Accordingly, we believe there is too slight a connection between Caldwell’s generalized grievance, and the government conduct about which she complains, to sustain her standing to proceed.

So was that the deciding factor in the decision to deny standing -- the fact that the contact with the offending material was not "forced"? Isn't that sort of arbitrary?

BTW, Justice Antonin Scalia's concurring opinion in Hein v. Freedom from Religion Foundation criticizes flaws and inconsistencies in some of the same decisions cited in Caldwell: Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982), Doremus v. Board of Education, 342 U.S. 429 (1952), and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Also, something really bothered me about the testimony of the National Science Foundation's attorney at the oral hearing (click on "statements by one judge during oral arguments" on this webpage -- the offending statement starts at 35:38 in the audio recording). He argued -- I think correctly -- that the NSF had no control over the content of UC-Berkeley's website and therefore was not a proper defendant in the case (in contrast, the US Environmental Protection Agency was a proper defendant in my lawsuit against California's smog impact fee because -- as an expert testified in state court -- the fee required the approval of the EPA). However, he added that the NSF's briefs said that the district court correctly dismissed the case, and IMO that was uncalled-for -- if the NSF is not a proper party to the case and is not affected by the case in any way, then the NSF should not be stating an opinion as to whether the case was correctly dismissed or not. Some attorneys have no sense of propriety.

Also, I want to say that IMO the rules of standing to sue should just be thrown out the window in constitutional cases. The Constitution is supposed to be the supreme law of the land, and following a rule of standing at the expense of the Constitution is straining at a gnat and swallowing a camel. Unfortunately, the tendency in the courts -- including constitutional cases -- has been to make the rules of standing more stringent rather than less stringent, because making these rules less stringent would lead to charges of violating precedent and charges that plaintiffs in the past were unfairly denied standing. Thus, the courts are riding a tiger and are afraid to dismount. Also, a desire to duck a lawsuit's merits gives judges an incentive to deny standing (judges desiring to duck issues should make more use of the principle of non-justiciability). The courts have been painting themselves into a corner by making the rules of standing more and more restrictive. One most choose between supporting the Constitution and supporting the rules of standing -- no one can serve two masters. Probably one of the worst examples of a court-created rule of standing is the arbitrary rule from Hein v. Freedom from Religion Foundation saying that taxpayers in establishment clause cases have standing where Congressional allocations of tax money are involved but not where executive-branch allocations of tax money are involved. IMO the notion that stringent rules of standing are necessary to prevent the courts from being flooded with lawsuits does not hold water -- the time, trouble, and expense of filing lawsuits tend to discourage frivolous lawsuits, and frivolous lawsuits that are filed can be quickly disposed of in rulings on the merits. And -- hypocritically -- Congress and the courts have actually been encouraging a proliferation of constitutional lawsuits by allowing unlimited attorney fee awards at full market rates even when the legal representation is pro bono and/or by non-profit organizations (see this article about Blum v. Stenson). Also, the vigilantist "citizen suit" provisions of environmental laws give all citizens standing to sue even when there are no allegations of injury to anyone or anything, let alone the plaintiffs.

If judges are really determined to deny standing, they can almost always find an excuse for doing so.

Judge to plaintiff: "I know that you have lost a fortune and spent years in pursuing this case, but I am still wondering if you are really interested in this case. I don't mean just a little interested -- I mean really, really interested. "

A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested.
-- Justice Harlan, dissenting opinion in Flast v. Cohen, 392 U.S. 83, 130

BTW, Justice Harlan also made the following statement about "taxpayer standing" (the issue of taxpayer standing was a factor in the district court's -- but not the appeals court's -- denial of standing in this case) --

The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues. . (citation omitted) . . . The interests he represents, and the rights he espouses, are, as they are in all public actions, those held in common by all citizens. To describe those rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules. -- Justice Harlan, dissenting opinion in Flast v. Cohen, 392 U.S. 83, 128-129

Rules of standing that are based on bad precedents are reminiscent of the following observation by Jonathan Swift:

It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

-- and also the following definition of "precedent" in Ambrose Bierce's "Devil's Dictionary":

In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament.

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