The 9th Circuit's arbitrary, discriminatory rulings on standing in establishment clause cases
A lawsuit challenging a government-funded website that promotes the harmony of religion and evolution is being appealed to the U.S. Supreme Court.
The website at the center of the controversy, operated by UC Berkeley and funded by a federal grant, is aimed at public school teachers. The website urges teachers to challenge students' religious beliefs that evolution contradicts their faith. Moreover, the site points teachers to statements from religious groups and denominations that support evolution, while ignoring religious groups that believe in a literal creation.
Attorneys with Pacific Justice Institute filed a petition with the Supreme Court this week after the Ninth Circuit Court of Appeals held that the plaintiff, a mother with children in Northern California public schools, did not have legal standing to challenge the website. By contrast, in most cases involving separation of church and state, the Ninth Circuit has been among the most lenient courts in the nation in allowing lawsuits to proceed. Just last week, in a case allowing atheists and lesbians to sue San Diego for letting the Boy Scouts use a public park, several dissenting Ninth Circuit judge sharply criticized the court's low threshold for legal standing.
The San Diego case is Barnes-Wallace v. City of San Diego, 04-55732. A news article said,
This past June 11, the panel—again over Kleinfeld’s dissent—reiterated that the plaintiffs had standing, but for a different reason—that the plaintiffs’ choice not to use the facilities was made “because they are offended by the Boy Scouts’ exclusive, and publicly expressed disapproval, of lesbians, atheists, and agnostics.”
Yesterday, the court announced that a call for en banc rehearing failed to win the approval of a majority of unrecused active judges.
Judge Diarmuid F. O’Scannlain dissented, joined by Kleinfeld and Judges Carlos Bea, Consuelo Callahan, Jay Bybee, and Sandra Ikuta.
O’Scannlain called the plaintiffs’ theory of standing “unprecedented” and said “[i]t splits standing law at the seams, forcing open the courthouse doors to plaintiffs without concrete, particularized injuries.”
Another news article said,
Lawsuits should only be available to plaintiffs with concrete injury, O'Scannlain wrote.
"Rather, the claim here is that the families are psychologically injured by the thought of associating with the Boy Scouts; they contend that they would be offended by the Boy Scouts' views if they chose to use the parks," he wrote. "This is an unprecedented theory."
There were no crosses or "god hates fags" signs on the properties. The plaintiffs were not expected to take an oath of belief in god in order to use the facilities. This lawsuit is like suing the UC Dept. of Paleontology because one does not want to use the department's government-sponsored website because one is offended by the fact that Darwinist crackpot Kevin Padian is on the department's staff.
O'Scannlain's complete dissent is here. The complete record of the 9th Circuit's opinions on the case is here.
BTW, the Boy Scouts are not leasing the land for free or virtually free -- the terms of the lease require the Boy Scouts to make millions of dollars worth of improvements to the properties. Also, the Boy Scouts apparently do not make a profit on rental fees charged to the public. Details are in this opinion.(pages 5-8)
The 9th Circuit federal court of appeals has 28 active judges -- only six voted to hold an en banc rehearing and four recused themselves, so unfortunately the vote was not even close. In the 9th circuit, en banc rehearing panels consist of 11 judges, fewer than the total number of active judges, 28 -- in all other circuits, en banc rehearing panels consist of all the active judges in the circuit. As happened here, judges will sometimes write opinions regarding a denial of an en banc rehearing -- another en banc rehearing denial where there was a written opinion was Freiler v. Tangipahoa Parish, a case concerning an oral evolution disclaimer.
Fatheaded Ed Brayton of course agrees with the grant of standing to the plaintiffs, but he has no credibility because he is an unscrupulous BVD-clad blogger who arbitrarily censors comments that he does not agree with.
Also, 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 is "an offensive anti-religious symbol" because it is a reminder that a cross that was in the old seal was removed! . What remedy could the courts give other than to tell Los Angeles County to put the cross back in the seal?