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This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Tuesday, October 07, 2008

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 [1] [2] [3] . The appeals court's opinion is here.
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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 -- [4] [5] [6] [7] [8] [9] [10].
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6 Comments:

Blogger Larry Fafarman said...

The "standing to sue" issue is often just a gimmick that judges use to dodge making decisions on the merits. The argument that the courts would be flooded with lawsuits if there were no strict limits on standing to sue just does not hold water -- it takes a lot of time, effort, and money to sue and most people would not bother to sue if they did not have a legitimate complaint. The few lawsuits that are utterly lacking in merit could be quickly rejected for that reason. People who take the time, effort, and money to file legitimate lawsuits deserve more than a brushoff from the courts.

Casey Luskin has written a good article about the case.

Tuesday, October 07, 2008 5:16:00 PM  
Blogger Larry Fafarman said...

One of things I have always wondered about is this notion that the issue of standing to sue has priority over the Constitution. Isn't that putting the cart before the horse?

Tuesday, October 07, 2008 5:39:00 PM  
Anonymous Voice in the Urbanness said...

> One of things I have always wondered about is this notion that the issue of standing to sue has priority over the Constitution. <

There is another unsupported statement. Do you care to explain or was that just thrown out so you could insult anyone who replied.

Tuesday, October 07, 2008 7:50:00 PM  
Anonymous W. Kevin Vicklund said...

One thing I've always wondered is where Larry got this notion that there's a "notion that the issue of standing to sue has priority over the Constitution." Constitutional standing is called constitutional standing because it's a requirement of the Constitution. Now there is another type of standing, called prudential standing, that is created by the courts, but it is not allowed priority over the constitution.

Wednesday, October 08, 2008 10:42:00 AM  
Anonymous Hector said...

Kevin, you are talking over the dullard's head again. You know he has no ability to understand legal concepts.

Wednesday, October 08, 2008 1:54:00 PM  
Blogger Larry Fafarman said...

Pettifogging, cyberbullying, cyberstalking troll Kevin Vicklund and his sidekick Hectoring Hector are back.

>>>>> Constitutional standing is called constitutional standing because it's a requirement of the Constitution. <<<<<<

We have been over this before -- the Constitution has no explicit requirement(s) for standing to sue. Article III of the Constitution only talks about "cases" and "controversies" -- the following rules of standing cannot be derived from those words: (1) Plaintiff must be injured-in-fact; (2) defendant must be cause of injury; and (3) injury must be redressable by the court. Anything can be a "controversy," including a hypothetical or moot case. Article III uses the two words interchangeably, implying that they have no particular meaning at all. The courts have been misinterpreting these two words for so long that they are not going to stop now -- he who rides a tiger is afraid to dismount. The height of absurdity of the rules of standing is that taxpayer standing in federal courts exists only in establishment clause cases involving Congressional allocations of tax funds and not executive-branch allocations of tax funds -- that is what was decided in Hein v. Freedom from Religion Foundation. Denying standing is mostly a gimmick that judges use to dodge making decisions on the merits. Also, as I pointed out, the "citizen suit" provisions of federal environmental laws do not require injury-in-fact to the plaintiff or anyone or anything -- and any injury-in-fact requirements that the courts have added do not change the fact that Congress was not aware that the "citizen suit" provisions as written do not satisfy the courts' injury-in-fact requirement.

One must choose between serving either the Constitution or the rules of standing -- no one can serve two masters:

No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Matthew 6:24 King James version

Wednesday, October 08, 2008 4:58:00 PM  

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