Caldwell v. Caldwell is a travesty, Part 1

For larger image, click on the picture above.

FIG. 1 When the L.A. County seal was redesigned in 2004, the tiny cross (visible above the bandshell in the middle of the right side of the old seal) was removed because of an establishment-clause lawsuit threat from the ACLU.

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FIG. 2 Cartoon from UC-Berkeley's "Understanding Evolution" website. Plaintiff in Caldwell v. Caldwell alleged that this tax-funded website endorsed beliefs that evolution theory is compatible with religion while disapproving contrary beliefs.

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This is Part 1. Part 2 has been posted.

The 9th circuit court of appeals' Caldwell v. Caldwell decision is a travesty and we should make a really big stink about it that the courts won't forget. In Caldwell, the 9th circuit denied standing to plaintiff Jeanne Caldwell's challenge to UC-Berkeley's "Understanding Evolution" website discussed above in Fig. 2. But in Vasquez v. Los Angeles County 487 F.3d 1246 (9th Cir. 2007), the 9th circuit granted standing to a complaint that the new L.A. county seal in Fig. 1 is "an offensive anti-religious symbol" because the cross that was in the old seal was removed! Though the 9th circuit did finally rule that the Vasquez suit lacked merit, the court did give the case a lengthy "Lemon test" analysis. IMO the courts did not have grounds for denying standing in Vasquez but they spent far more time in judging the merits than the case deserved -- L.A. County never had an obligation to have a cross in the seal and the cross in the old seal actually gave Christianity a sort of favored position -- it was not really a favored position because the cross was a historical rather than a religious symbol -- so at worst Christianity lost its favored position. Also, there was no anti-religious message in the new seal itself -- the new seal was just a reminder that the cross had been removed. But if Vasquez was entitled to standing, then Jeanne Caldwell was certainly entitled to standing too. How arbitrary and capricious can the courts get? Denial of standing is often just a gimmick that judges use to dodge making decisions on the merits. Casey Luskin says that statements by one judge at an oral hearing hinted that Jeanne Caldwell's suit had merit:

So when there's this particular page which is the focus of this which says that religion and evolution are not incompatible, now is that a position taken by the museum, taken by the institution, the university? [19:40]

Does the [university] say this is not necessarily our position but this is a way that teachers have dealt with the problem? It doesn't say that . . . ." [20:24]

"If in fact this is the pronouncement of the government as to its view of religion, I think that that is a critical point" [20:55]

(a complete audio recording of the ~39-minute oral hearing is provided)

The Caldwell v. Caldwell opinion summarizes the case as follows (pages 3-4):
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We must decide whether Jeanne E. Caldwell, who asserts an interest in being informed about how teachers teach the theory of evolution in biology classes, has standing to pursue an Establishment Clause claim arising out of her offense at the discussion of religious views on the “Understanding Evolution” website created and maintained by the University of California Museum of Paleontology and funded in part by the National Science Foundation. She avers that the website endorses beliefs which hold that religion is compatible with evolutionary theory and disapproves beliefs, such as her own, that are to the contrary, thereby exposing her to government endorsed religious messages and making her feel like an outsider. In a published opinion, the district court concluded that Caldwell’s allegations state only a generalized grievance insufficient for injury in fact, and dismissed the complaint. Caldwell v. Caldwell, 420 F.Supp.2d 1102, 1007 (N.D. Cal. 2006). We also conclude that the harm asserted by Caldwell to her interest in being informed about the teaching of evolutionary theory is too generalized and remote to confer standing against the University of California faculty who administer the website and develop its content on behalf of the Museum of Paleontology. Caldwell’s complaint against the Director of the National Science Foundation has become moot since her appeal was taken. Therefore, we affirm.

Caldwell v. Caldwell has the following discussion (page 10) about Vasquez v. Los Angeles County 487 F.3d 1246(9th Cir. 2007) --

In Vasquez v. Los Angeles County, a county employee was forced to have daily contact with a county seal from which a cross had been removed and which he regarded, for this reason, as an offensive anti-religious symbol. 487 F.3d 1246, 1249 (9th Cir. 2007). We held that Vasquez had standing even though he had taken no affirmative steps to avoid areas where the symbol was located; we did not think it necessary to require a change of behavior — in his case, to quit his job — in order to vindicate spiritual harm from unwelcome direct contact with an allegedly offensive religious (or anti-religious) symbol. Nor did we think Vasquez’s contact with the symbol too tenuous, indirect, or abstract to give rise to Article III standing given that he held himself out as a member of the community where the seal was located, as someone forced into frequent regular contact with it, and as someone directly affected by unwelcome direct contact with a symbol that was pervasively on display. We thought Valley Forge distinguishable in this respect, because the plaintiffs there were physically removed from the allegedly unconstitutional conduct, and because Vasquez had alleged more than “a mere abstract objection” to removal of the cross from the county seal. Id. at 1251 (quoting Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997)).

I previously noted that though the district court's dismissal of Caldwell v. Caldwell was partly based on an alleged lack of taxpayer standing, the taxpayer standing issue was inexplicably ignored in the appeals court decision -- the appeals court opinion said (page 6), "The district court held that Caldwell failed to make out taxpayer standing with respect to both the federal and state parties, an issue that is not appealed." I discuss the district court decision here.

There are now three possibilities:

(1) A petition for a rehearing by the original 3-judge panel

(2) A petition for an en banc rehearing (full-court rehearing -- actually just a partial-court 11-judge rehearing in the 9th circuit). It takes just one judge to request a vote on whether to hold a rehearing. An en banc rehearing is held if a majority of the circuit's active judges vote in favor of it.

(3) An appeal to the Supreme Court.

The Caldwell v. Caldwell suit was filed three years ago, so the wheels of injustice turn very slowly. That is an awfully long time to reach an appeals court decision for this case, especially considering that the case has a high profile (it has been in the news and the district court decision was published and the appeals court decision is going to be published, though relatively few court decisions are published) and was a fairly simple and straightforward case. So imagine what the judges do to low profile cases -- they don't even bother to read the briefs. In my first smog impact fee lawsuit in the federal courts, there was no oral hearing and no opinion at either the district court or appeals court levels. I was later vindicated when the state courts declared the fee to be unconstitutional and an expert testified in state court that the fee required the approval of the US Environmental Protection Agency, showing that my case belonged in federal court. People who go to the time, effort, and expense of suing in the courts are entitled to more than a brush-off.

I have more things that I want to say about Caldwell v. Caldwell and I may post them either in the comment thread here or in a new post.
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