Lawsuit against UC evolution website dismissed by appeals court
Cartoon in challenged UC-Berkeley evolution website.
The 9th Circuit court of appeals has dismissed an establishment clause lawsuit -- Caldwell v. Caldwell -- against a UC-Berkeley evolution website called "Understanding Evolution." The National Center for Science Education has the story. I have previously written about the case    . The appeals court's opinion is here.
Oddly, though the district court dismissed the case partly on the basis of an alleged lack of taxpayer standing, the taxpayer standing issue was 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." Sheeesh, how could that issue not be appealed if that issue was part of the basis for the dismissal by the district court?
Basically, the appeals court's dismissal was based on a decision that the violation of plaintiff Caldwell's imaginary "right to not be offended" was not strong enough to be considered to be an "injury-in-fact" strong enough to justify granting standing to sue. Of course, the "right to not be offended" is not in the Constitution -- it is a right that has been invented by the courts. The problem is not that the courts have invented this right -- the problem is that this right is granted by the courts in a discriminatory fashion. The courts have decided that in some cases, violation of this "right to not be offended" is a sufficient "injury-in-fact," and in other cases a violation of this right is not a sufficient injury-in-fact. The distinctions between these two kinds of cases are completely arbitrary and subjective. For example, in the evolution disclaimer cases of Kitzmiller v. Dover and Selman v. Cobb County, the courts arbitrarily decided that violation of the plaintiffs' "right to not be offended" was a strong enough "injury-in-fact" to justify granting standing to sue.
The courts have also made a mess of the taxpayer standing issue. One reason why taxpayer standing should not be an issue in establishment clause cases is that some establishment clause cases involve tax funds while others do not -- for example, some religious symbols on public property are tax-funded and some are privately-funded.
There is a general rule against taxpayer standing but the Supreme Court arbitrarily decided in Flast v. Cohen to grant taxpayer standing for establishment clause lawsuits. The Supreme Court got even more arbitrary when it decided in Hein v. Freedom of Religion Foundation that there would be taxpayer standing in cases involving Congressional allocations of tax funds but not in cases involving executive-branch allocations of tax funds. For discussions of Flast and Hein on this blog, see --       .