S.F. Chronicle article about Caldwell v. Caldwell

The San Francisco Chronicle has a new article about Caldwell v. Caldwell, which has its own post label on this blog. The article attracted over 500 comments in just a few hours -- unfortunately, a lot of the comments are not about the case but debate evolution. This publicity is good -- publicity is a very important factor in the Supreme Court's decisions on whether to grant certiorari.

The article said,

At issue is one page, out of 840 on the Web site, that says Darwin's theory and religion can co-exist.

Actually, more is at issue than just this one webpage -- for example, this webpage links to a National Center for Science Education webpage that presents only one side of the evolution v. religion issue.
.
The federal courts have IMO misinterpreted the "cases and controversies" provision of Article III of the Constitution as requiring the following minimal criteria for standing to sue: (1) injury-in-fact, (2) traceability of the injury to the challenged action, and (3) redressability of the injury by the courts. In Caldwell v. Caldwell, the plaintiff's alleged injury is that she cannot use the UC Berkeley website without fear of encountering an offensive religious message. That injury could be eliminated by setting up a version of the website that has the religious messages removed. The original website could carry the following prominent warning: "WARNING: This website has material concerning religion and some people may find this material offensive. A version of this website with this material removed is at ____." However, IMO there would still be an establishment clause violation.

Rebuffed by lower courts, she has appealed to the nation's highest court, and UC joined the battle this week, saying in its response that the Internet is not like a park and that, in fact, Caldwell has no right even to file the suit.

UC has not "joined" the battle -- UC has been in the battle from the beginning. The above statement must mean that UC has filed a brief in opposition to the petition for certiorari (an opposition brief is required only in death penalty cases and when demanded by the court).

BTW, I am surprised that the petitioner has as little as 10 days to reply to the opposition brief -- the Supreme Court rules say that the case may be presented for consideration not less than 10 days after the opposition brief is filed. A brief replying to the opposition brief may be filed after the 10 day period but consideration of the case will not be delayed to wait for a reply brief. [1] The brevity of the time to reply is especially surprising because the reply brief must normally be presented in a special booklet format that is 6-1/8 by 9-1/4 inches in size. The case took three long years to work its way through the lower courts and now the Supreme Court is in a big hurry.

I am going to try to get a copy of UC's opposition brief.

I am still wondering what happened to the district court's rulings denying taxpayer standing -- these rulings were not appealed. These rulings were a major part of the district court decision and I don't understand how the case could be appealed at all without appealing these rulings. The 9th Circuit court of appeals did not rule at all on the hokey taxpayer standing issue.

Attorneys for UC say the lower-court rulings did not make the Internet immune to such claims but that existing legal principles are sufficient to dismiss Jeanne Caldwell's eligibility to sue. They also say deciding a new standard for the Internet would violate the role of the Supreme Court, which is not to open new legal frontiers but to resolve issues that arise from a body of lower-court rulings.

That's ridiculous -- the case did arise from a body of lower-court rulings. And the Internet has become a major means of communication -- in fact, newspapers are already suffering severe losses because of competition from the Internet.

Roy Caldwell, director of Cal's Museum of Paleontology, the site's sponsor, said some UC officials worry that the high court may want to clarify standards on "standing," or eligibility to sue. (He's not related to Jeanne Caldwell.)

Well, I sure hope that UC officials "worry"about this lawsuit -- that is a good sign.

Interestingly, the Buono case that the Caldwell plaintiffs heavily relied upon has also been appealed to the Supreme Court (to link to the documents listed below, go to this article on SCOTUSblog):

Docket: 08-472
Title: Salazar, Secretary of the Interior, et al., v. Buono
Issue: Whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land and if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation.

Opinion below (9th Circuit)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Brief amicus curiae of the Veterans of Foreign Wars, et al. (in support of petitioner)

.