Caldwell v. Caldwell is a travesty, Part 2

For a larger image, click on above picture

The homepage of "Understanding Evolution for Teachers." The plaintiff in Caldwell v. Caldwell could not be sure which topics to avoid on this homepage in order to avoid seeing an offensive religious message -- for example, such a message is likely to appear under the topic labels "misconceptions," "overcoming roadblocks," "nature of science," and even "teaching evolution."

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Part 1 is here.

The appeals court opinion in Caldwell v. Caldwell says (pages 9-10),

In Buono [Buono v. Norton, 371 F.3d 543 (9th Cir. 2004)] , the plaintiff, a retired employee of the Park Service who had been Assistant Superintendent of the Mojave National Preserve and regularly visited it, complained that a Latin cross atop Sunrise Rock violated the Establishment Clause and was offensive to him. He regarded the cross as offensive because it was on federal property — not because of the cross as such — and the district court found that Buono would tend to avoid Sunrise Rock as long as the cross remained standing. We held that Valley Forge “drew a distinction between abstract grievances and personal injuries, not ideological and religious beliefs,” 371 F.3d at 547, and that Buono’s inhibition from freely using the Preserve sufficed as injury in fact and constituted “personal injury suffered . . . as a consequence of the alleged constitutional error.” Id. (quoting Valley Forge, 454 U.S. at 485) [Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)] . (boldness added)

What? "Drew a distinction between abstract grievances and personal injuries, not ideological and religious beliefs"? What in the hell is that supposed to mean? That is really getting arbitrary, capricious, nitpicking, and hairsplitting -- it is all basically just a "right" to not be offended.

The Caldwell opinion continues (page 10),

Since Buono, we have also considered standing to pursue an Establishment Clause challenge in the context of a government seal. In Vasquez v. Los Angeles County . . . .

The ridiculous Vasquez v. Los Angeles County case is discussed in Part 1.

Caldwell says (pages 10-11),

Caldwell’s situation does not fit neatly into a place already staked out along the continuum of Establishment Clause standing. She is neither so removed from the conduct challenged as the plaintiffs were in Valley Forge, nor so close as the plaintiff was in Vasquez. Her connection to the writing on the website is more tenuous than Buono’s to the Preserve where the offending symbol was a Latin cross that was permanently installed on a top of a hill, while her complaint is more abstract and her contact less forced than Vasquez’s.

The Caldwell v. Caldwell decision does not adequately distinguish between Jeanne Caldwell's situation and Buono's situation. Buono always knew where the cross was and he could avoid looking at it. However, Caldwell could not be sure which topics to avoid on the "Understanding Evolution for Teachers" homepage -- shown above -- in order to avoid seeing an offensive religious message; for example, such a message is likely to appear under the topic labels "misconceptions," "overcoming roadblocks," "nature of science," and even "teaching evolution." I will show below that Caldwell was also not adequately distinguished from Vasquez.

Caldwell says (page 11),

It is instructive to compare School District of Abington v. Schempp, 374 U.S. 203 (1963), and Doremus v. Board of Education, 342 U.S. 429 (1952), as the Supreme Court did in Valley Forge. 454 U.S. at 486 n.22. Schempp is the source of the rule which informed our decision in the seal case, that unwelcome direct contact with an allegedly offensive religious or anti-religious symbol, suffices for Article III standing.(boldness added)

See Vasquez, 487 F.3d at 1251-53. In Schempp, children enrolled in public school together with their parents objected to a Bible reading in the classroom that was mandated by state law. The Court found the interests asserted sufficient for standing because these plaintiffs were “directly affected by the laws and practices against which their complaints are directed.” Schempp, 374 U.S. at 224 n.9. This contrasts with Doremus, in which the same issues were raised but in which parents lost standing to sue when their children were graduated. 342 U.S. at 432-33 . . . . (boldness added)

As the Court explained in Valley Forge, “[t]he plaintiffs in Schempp had standing, not because their complaint rested on the Establishment Clause — for as Doremus demonstrated, that is insufficient — but because impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them.” 454 U.S. at 486 n.22. (boldness added)

How does Doremus show that resting a complaint on the Establishment Clause is insufficient? According to the above statements in Caldwell, Doremus raised the same issues as Schempp but the parents in Doremus "lost standing to sue when their children were graduated." So according to the above statements in Caldwell, all Doremus really showed was that plaintiffs can be declared to lose standing when challenged actions no longer directly affect them. But what does that have to do with Caldwell, where there is no claim that the plaintiff is no longer affected by the challenged action? Anyway, Jeanne Caldwell -- like Vasquez -- complained of "unwelcome direct contact with an allegedly offensive religious or anti-religious symbol" or message, and if anything, her complaint was less "abstract" than Vasquez's complaint about the county seal because the seal did not contain any offensive religious or anti-religious symbols or messages but was just a reminder that a Christian cross had been removed when the seal was redesigned.

Caldwell says (page 12) --

. . . .Caldwell’s offense is no more than an “abstract objection” to how the University’s website presents the subject . . . That she is the parent of school-age children makes her position no less remote, for her connection to the University of California website is not similar to the relationship in Schempp between parents whose children are directly exposed to unwelcome religious exercises in the classroom and the school district. Accordingly, we believe there is too slight a connection between Caldwell’s generalized grievance, and the government conduct about which she complains, to sustain her standing to proceed.

So was that the deciding factor in the decision to deny standing -- the fact that the contact with the offending material was not "forced"? Isn't that sort of arbitrary?

BTW, Justice Antonin Scalia's concurring opinion in Hein v. Freedom from Religion Foundation criticizes flaws and inconsistencies in some of the same decisions cited in Caldwell: Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982), Doremus v. Board of Education, 342 U.S. 429 (1952), and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Also, something really bothered me about the testimony of the National Science Foundation's attorney at the oral hearing (click on "statements by one judge during oral arguments" on this webpage -- the offending statement starts at 35:38 in the audio recording). He argued -- I think correctly -- that the NSF had no control over the content of UC-Berkeley's website and therefore was not a proper defendant in the case (in contrast, the US Environmental Protection Agency was a proper defendant in my lawsuit against California's smog impact fee because -- as an expert testified in state court -- the fee required the approval of the EPA). However, he added that the NSF's briefs said that the district court correctly dismissed the case, and IMO that was uncalled-for -- if the NSF is not a proper party to the case and is not affected by the case in any way, then the NSF should not be stating an opinion as to whether the case was correctly dismissed or not. Some attorneys have no sense of propriety.

Also, I want to say that IMO the rules of standing to sue should just be thrown out the window in constitutional cases. The Constitution is supposed to be the supreme law of the land, and following a rule of standing at the expense of the Constitution is straining at a gnat and swallowing a camel. Unfortunately, the tendency in the courts -- including constitutional cases -- has been to make the rules of standing more stringent rather than less stringent, because making these rules less stringent would lead to charges of violating precedent and charges that plaintiffs in the past were unfairly denied standing. Thus, the courts are riding a tiger and are afraid to dismount. Also, a desire to duck a lawsuit's merits gives judges an incentive to deny standing (judges desiring to duck issues should make more use of the principle of non-justiciability). The courts have been painting themselves into a corner by making the rules of standing more and more restrictive. One most choose between supporting the Constitution and supporting the rules of standing -- no one can serve two masters. Probably one of the worst examples of a court-created rule of standing is the arbitrary rule from Hein v. Freedom from Religion Foundation saying that taxpayers in establishment clause cases have standing where Congressional allocations of tax money are involved but not where executive-branch allocations of tax money are involved. IMO the notion that stringent rules of standing are necessary to prevent the courts from being flooded with lawsuits does not hold water -- the time, trouble, and expense of filing lawsuits tend to discourage frivolous lawsuits, and frivolous lawsuits that are filed can be quickly disposed of in rulings on the merits. And -- hypocritically -- Congress and the courts have actually been encouraging a proliferation of constitutional lawsuits by allowing unlimited attorney fee awards at full market rates even when the legal representation is pro bono and/or by non-profit organizations (see this article about Blum v. Stenson). Also, the vigilantist "citizen suit" provisions of environmental laws give all citizens standing to sue even when there are no allegations of injury to anyone or anything, let alone the plaintiffs.

If judges are really determined to deny standing, they can almost always find an excuse for doing so.

Judge to plaintiff: "I know that you have lost a fortune and spent years in pursuing this case, but I am still wondering if you are really interested in this case. I don't mean just a little interested -- I mean really, really interested. "

A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested.
-- Justice Harlan, dissenting opinion in Flast v. Cohen, 392 U.S. 83, 130

BTW, Justice Harlan also made the following statement about "taxpayer standing" (the issue of taxpayer standing was a factor in the district court's -- but not the appeals court's -- denial of standing in this case) --

The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues. . (citation omitted) . . . The interests he represents, and the rights he espouses, are, as they are in all public actions, those held in common by all citizens. To describe those rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules. -- Justice Harlan, dissenting opinion in Flast v. Cohen, 392 U.S. 83, 128-129

Rules of standing that are based on bad precedents are reminiscent of the following observation by Jonathan Swift:

It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

-- and also the following definition of "precedent" in Ambrose Bierce's "Devil's Dictionary":

In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament.

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Fight ACLU rip-offs by fighting Blum v. Stenson

I was hoping that by now a law banning or capping attorney fee awards in establishment clause cases would have passed, but no soap. IMO it is time for a new strategy -- getting Blum v. Stenson, 465 U.S. 886 (1984) overturned would provide a partial solution. I have previously condemned Blum and I am expanding my discussion of this case here for the following reasons:

(1) -- to present more detail of the opinion.

(2) -- to argue that the decision should be overturned because it was based on the procedural error of misrepresenting -- not merely misinterpreting -- a Senate report.

(3) -- to show how influential it has been -- it has been cited numerous times in court opinions.

(4) -- to note the large number of government entities that filed or joined amicus briefs: the US government and about 41 states.

(5) -- to show that this decision may have influenced the American Bar Association's policy on pro bono work.

(6) --to show when the government is eligible to be awarded attorney fees.

(7) -- because Blum v. Stenson denies judges the flexibility to determine a "reasonable" fee award (the term "reasonable" is in 42 USC §1988). However, this reasonableness issue does not involve the procedural error of misrepresenting a Congressional report and hence IMO is not grounds for overturning or challenging Blum.

The "no trolls" symbol is up in order to ward off lousy trolls like Kevin Vicklund, Voice-in-the-Urbanness, etc., who always claim that they and judges are always right and I am always wrong.
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The Blum v. Stenson decision is a major underpinning of the "Dover trap". Blum v. Stenson should be overturned -- stare decisis be damned -- on the grounds of a procedural error: the decision was entirely based upon what a Senate report did not say, imply, or even suggest. In Blum v. Stenson, the Supreme Court ruled, solely on the basis of a Senate report, that attorney fee awards to plaintiffs should not be reduced on the grounds that the legal representation was by a non-profit organization -- the ruling presumably also applies to pro bono representation. But this ruling was not based on anything that the Senate report itself said -- the report only said that the fees should "not be reduced because the rights involved may be nonpecuniary in nature" (emphasis added) -- but was based on what court cases cited by the report said about issues not mentioned in the report: the cited court cases said that the fees should not be reduced on the basis that the legal representation was from a non-profit organization or was pro bono. The Senate report itself was only talking about nonpecuniary claims and said nothing -- directly or indirectly -- about non-profit or pro bono representation. Duh. I assert that the mere citation of a court opinion does not automatically include the opinion's entire contents. Also, the readers of the Senate report are not responsible for reading the entire court opinions cited by the report, the report gives no indication that the opinions have more information that readers need to know, and anyway the readers of the Senate report should not be expected to find and read other documents for more information. Even at best, reliance on Congressional reports is often questionable -- indeed, Justice Antonin Scalia has a general policy of refusing to even consider Congressional reports at all when interpreting statutes. Full legislatures usually don't have a chance to vote on statements in legislative reports and debates, and most people do not bother to read legislative histories -- how many of the California legislators who voted for the infamous "smog impact fee" on out-of-state vehicles had read the California federal pre-emption waivers' legislative history, which said that a main purpose of the waivers was to use California as an emissions-control testing area and never said that a purpose was to allow gross-polluting vehicles to be brought to California? And let's bury once and for all the cockamamie notion that it's OK to put words in people's mouths, claiming that they said things that they never said or even implied or suggested. This is really a no-brainer.

The relevant passage of Blum v. Stenson, 465 U.S. 886, 893-896 (1984) says,

The Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney's fee to prevailing civil rights litigants. 7 In enacting the statute, Congress directed that attorney's fees be calculated according to standards currently in use under other fee-shifting statutes:

"It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D.  9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent [465 U.S. 886, 894] counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976). 8 (emphasis added)

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. 9 None of these four cases made any mention of a cost-based standard. 10 Petitioner's argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD  9444 (CD Cal. [465 U.S. 886, 895] 1974), make this explicit. In Stanford Daily, the court held that it "must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return." 64 F. R. D., at 681. In Davis, the court held:

"In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel . . . are employed by . . . a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorney's fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees." 8 EPD, at 5048-5049.

We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of "windfall profits" it expressly intended to prohibit.

The statute and legislative history establish that "reasonable fees" under 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel. 11 The policy arguments advanced in favor of a [465 U.S. 886, 896] cost-based standard should be addressed to Congress rather than to this Court.

Note that none of the quotes about non-profit or pro-bono representation are from the Senate report itself -- they are all from the cited cases. In fact, the Senate report's above quoted passage implies that it does not apply to non-profit and pro bono representation -- the passage states, "These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." A need to pay fees that are adequate to attract competent counsel does not exist at all where representation is pro bono and is of reduced importance where representation by non-profit organizations.

I suspect that the American Bar Association's rules on pro bono work were specially written just to accommodate the Blum v. Stenson decision. The ABA rule on pro bono work, which recommends that attorneys spend a minimum of 50 hours per year on pro bono work, says,

[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means. (emphasis added)

Blum v. Stenson has been a very influential decision -- it has been cited 173 times in federal circuit court cases (both appellate and district court cases) and 19 times in US Supreme Court cases (20 cases are listed but one is a citation of Blum v. Stenson itself, hence the number 19; also, I wonder why the most recent case Supreme Court case that cited Blum is dated 1992), though not all of those citations are in connection with the issue of fee reduction in cases of non-profit and pro bono representation. Also, the case attracted a tremendous amount of interest at the time -- amicus briefs in favor of allowing the fee reduction were filed or joined by the US solicitor general and the attorney generals of 41 states according to my count, and I counted 6 amicus briefs opposing allowing the fee reduction. This heavy involvement of governments showed that they did not consider the issues of the case to be trivial. Anyway, I can't believe that no one who was involved in Blum or any of the cases citing Blum noticed the above fatal procedural error before: a misrepresentation, not a mere misinterpretation, of the Senate report. I noticed the error immediately -- it practically jumped out of the screen at me. I guess my problem is that I think that it is wrong to hallucinate things that are not said -- a lot of people just don't care about that. For example, I feel that Judge Jones does not deserve credit for things that he did not say in his Kitzmiller v. Dover opinion, but Darwinists disagree. Anyway, the meaning of the Senate report should have been settled long before the Supreme Court decided Blum v. Stenson. However, because Blum is so often cited or relevant, there are frequent opportunities to challenge it, and I just hope that some litigants will take these opportunities.

Are governments that win civil rights cases (I am not assuming that the government is the defendant, though the government usually is) eligible for an award of attorney fees in civil rights cases? The US government is not eligible, because 42 USC §1988 says,

. . . .the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

However, the Peloza v. Capistrano School District case says that other government entities may be eligible. The National Center for Science Education describes Peloza as follows:

In 1994, in Peloza v. Capistrano School District, the Ninth Circuit Court of Appeals upheld a district court finding that a teacher's First Amendment right to free exercise of religion is not violated by a school district's requirement that evolution be taught in biology classes. Rejecting plaintiff Peloza's definition of a "religion" of "evolutionism", the Court found that the district had simply and appropriately required a science teacher to teach a scientific theory in biology class. (John E. Peloza v. Capistrano Unified School District, (1994) 37 F. 3rd 517)

The district court judge tried to soak Peloza for the defendants' legal costs but was overruled by the appeals court, which said,

IV. Attorney Fees
Peloza contends the district court erred in awarding the defendants costs and attorney fees of approximately $32,000. This award, made by the district court under Federal Rule of Civil Procedure 11 and 42 U.S.C. ~1988, was appropriate if Peloza's complaint is frivolous. Christianburo Garment Co. V. E.E.O.C., 434 U.S. 412, 422, 98 S.Ct. 694, 7004)1, 54 L.Ed.2d 648 (1978) (under civil rights statutes); Townsend V. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990) (en banc) (under Fed.R.Civ.P. 11).

[6] Peloza's complaint is not entirely frivolous. Some of the issues he raises present important questions of first impression in this circuit. His free speech claim involves substantial questions and requires the balancing of rights of free speech against the Establishment Clause, a matter upon which the Supreme Court recently commented in Lamb's Chapel. Accordingly, we reverse the district court's award of attorney fees and costs to the defendants.

As I noted above, Blum v. Stenson denies judges the flexibility to determine a "reasonable" fee award (the term "reasonable" is in 42 USC §1988). In Peloza, the appeals court used a reasonableness criterion to decide that Peloza was not liable for attorney fees because his suit was not entirely frivolous. However, as I said, this reasonableness issue does not involve the procedural error of misrepresenting a Congressional report and hence IMO is not grounds for overturning or challenging Blum.

An attorney said about the reasonableness issue,

The ACLU, posturing to the public that it acts on principle and pro bono, in the public interest and without fee, in fact has raked in enormous profits in lawsuits brought under the “establishment clause.”

These lawsuits are nationwide, coast to coast, and run literally into millions of dollars in the pockets of the ACLU in “attorney fee awards” - although in fact neither the ACLU nor its mascot plaintiffs have incurred any actual attorney fees.

Congress did not require judges to award attorney fees under 42 U.S.C. Section 1988. Congress made attorney-fee awards purely discretionary. Judges have interpreted that to mean that a prevailing party is to receive “reasonable” attorney fees, even if there are in fact no actual attorney fees. “Market rate” is used. In large cities, that can be a starting point of about $350 an hour.

So, in practice, what is a “reasonable” attorney fee? Whatever one lawyer, i.e., a judge, wants to give to another lawyer, taxpayers be damned.

As far as is known, not one single judge has ever simply dared to say “no” to the ACLU. Why should they? They are lawyers handing taxpayer funds to other lawyers; the fox is in the chicken coop.

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Lemon and Endorsement Tests are incompatible

The Lemon Test and the Endorsement Tests are judicial tests that courts use to determine when there is a violation of the 1st Amendment's establishment clause. Both tests are often used in the same opinion, as in the Kitzmiller v. Dover intelligent design case. The Endorsement Test is sometimes considered to be a refinement of the Lemon Test. I assert that the two tests are incompatible because the Lemon Test requires consideration of religious motivations whereas the Endorsement Test when correctly interpreted prohibits such consideration.

The Endorsement Test is based on a paragraph in a concurring opinion of Justice O'Connor in Lynch v. Donnelly, 465 U.S. 668 (1984). So far as I know the paragraph's statement of the test has not been modified by the court and remains the official statement of the test. Here is the paragraph(465 U.S. 668, 687-688), quoted in part:
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The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions. . . .The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. (emphasis added, citations omitted)

In my previous discussions of the endorsement test, I have focused on the "political insider/outsider" stuff of the last sentences above. Now I want to focus on the first sentence. I assert that the first sentence prohibits courts from considering religious motivations as a factor in determining whether there has been an Establishment Clause violation, because such consideration would -- according to the first sentence -- violate the Establishment Clause's prohibition on making adherence to a religion relevant to a person's standing in the political community. I assert that the first sentence is an important part of the statement of the test and should not be arbitrarily dropped from the statement of the test -- a feeling of bad standing in the community as a result of religious beliefs would result in a feeling of "political outsider" status. IMO the way the test should be applied is by a determination of whether there is an endorsement or disapproval that has the effect of making some people feel like political insiders or outsiders. For example, the Dover evolution disclaimer statement said nothing overtly religious (except that perhaps the term "intelligent design" implies the existence of a supernatural designer) and only evolution was actually taught, so this statement should not reasonably have the effect of making anyone feel like a "political outsider." On the other hand, censoring the statement on the grounds that it expresses endorsement of religion would make some people feel like "political outsiders" and hence would be unconstitutional under the Endorsement Test.

The Lemon Test, named for Lemon v. Kurtzman, 403 U.S. 602 (1971), originally consisted of three parts or "prongs":

1. The government's action must have a secular legislative purpose;

2. The government's action must not have the primary effect of either advancing or inhibiting religion;

3. The government's action must not result in an "excessive government entanglement" with religion.

The first prong, or "purpose" prong, requires determination of whether the public officials who are responsible for the government's action in question have religious motivations.

The second and third prongs are often combined into a single "effect" prong. The Selman v. Cobb County district-court opinion says,

Both the Supreme Court and the Eleventh Circuit have acknowledged that the second and third prongs of the Lemon test are interrelated insofar as courts often consider similar factors in analyzing them. . . . . In fact, the Eleventh Circuit, like several other circuit courts, has combined the second and third prongs of the Lemon analysis into a single "effect" inquiry. . . . The Court will do the same in the instant Order. (citations omitted)

IMO the best way to resolve this conflict between the Lemon Test and the Endorsement Test is to get rid of the Lemon Test, which is already highly disfavored. As long ago as 1993, Justice Scalia wrote of the Lemon Test,

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again ....... no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart...and a sixth has joined an opinion doing so........When we wish to strike down a practice it forbids, we invoke it....when we wish to uphold a practice it forbids, we ignore it entirely.......I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced." Citations omitted. -- from Concurrence in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993).

The Supreme Court can hardly expect lower courts to use the Lemon Test when the SC itself often does not use it. I suspect that the only reason why the SC has not officially dumped the Lemon Test is that the SC wants the test to be available in case the SC itself wants to use the test in the future.

The Kitzmiller v. Dover opinion notes that the defendants agreed to use the Lemon Test but opposed use of the Endorsement Test:

The parties are in agreement that an applicable test in the case sub judice to ascertain whether the challenged ID Policy is unconstitutional under the First Amendment is that of Lemon v. Kurtzman, 403 U.S. 602 (1971), (hereinafter "the Lemon test"). . . . Defendants maintain that this Court should not apply the endorsement test to the challenged ID Policy because the Supreme Court did not apply the test to the creationism statutes at issue in Epperson and Edwards. As Plaintiffs aptly state however, Epperson was decided in 1968, five years before Lemon, and accordingly nearly two decades before Justice O' Connor first began to articulate the endorsement test as a way to conceptualize Lemon.(pages 9-10)

It should have been the other way around -- the defendants should have agreed to the Endorsement Test and opposed the Lemon Test. Because of the fundies on the school board, the Lemon Test was the kiss of death for the defendants because of this test's consideration of religious motivations. IMO the defendants at least stood a chance under the Endorsement Test, which IMO when correctly interpreted prohibits consideration of religious motivations, as I noted. The Supreme Court's wishy-washiness towards the Lemon Test is certainly a strong argument against using it.

As long as the Lemon Test is available, school board members and legislators can help criticisms of evolution in public school curricula pass this test by quitting churches, stomping on bibles, etc. to demonstrate that they are not motivated by religion.

Related post: Aptly named "Lemon test" sucks
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Update on establishment clause lawsuit against UC-Berkeley website

I previously reported that an establishment clause lawsuit against a UC-Berkeley evolution website (Caldwell v. Caldwell) was dismissed in a federal district court on the absurd grounds that the plaintiffs lacked taxpayer standing to sue. The Evolution News & Views website reports that last month the 9th Circuit federal court of appeals heard oral arguments on an appeal of the lawsuit. What surprises me is that the oral arguments described in the report only concerned the merits of the lawsuit and did not even mention the dismissal. The district court opinion did not even make a ruling on the merits:

In view of the above holding, the court need not, and does not, reach the parties' arguments on the merits of the Establishment Clause claim. This conclusion is further buttressed by the fact that the court, as described above, is currently unable to take judicial notice of defendants' website. As such, the court does not have access to what defendants argue is the necessary and relevant context in which to evaluate plaintiff's claim.
Accordingly, consideration on the merits is premature at this juncture, and is better suited for resolution if and when the case is again before this court.(page 13)

So there is no decision on the merits for the appeals court to review, no decision on the merits to affirm or reverse. So why is the appeals court listening to arguments on the merits of the lawsuit? And why is the dismissal not mentioned in the EN&V report?

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Methodist Church mislabels ID as "faith-based"

The National Center for Science Education reported,

At its General Conference held in Fort Worth, Texas, from April 22 to May 2, 2008, the United Methodist Church adopted three resolutions relevant to the teaching of evolution in the public schools. First, and most directly concerned with education, the UMC expressed its opposition to "the introduction of any faith-based theories such as Creationism or Intelligent Design into the science curriculum of our public schools," noting that "the United Methodist Church has for many years supported the separation of church and [s]tate" and that "[t]he promotion of religion or any particular religion in the public schools is contrary to the First Amendment."

. . . . .With over eight million members in the United States served by over forty-five thousand ministers, the United Methodist Church is the third largest religious denomination in the United States.

Intelligent Design is not "faith-based" -- it entirely consists of scientific observations and scientific analysis. The Methodist Church has obviously been taken in by Darwinist propaganda.

The text of the resolution is here.

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Flast v. Cohen: Flaws and misinterpretations of major precedent concerning taxpayer standing in establishment clause cases

Flast v. Cohen, 392 U.S. 83 (1968), has been a major precedent on taxpayer standing to sue in establishment clause cases, yet it is badly flawed and has been widely misinterpreted. Flast said at 102-103,

" The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute . . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds [392 U.S. 83, 103] specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8. (emphasis added)

It is generally falsely assumed that the first requirement shown in bold ("It will not be sufficient to allege ...") was added by Hein v. Freedom from Religion Foundation [1] [2]. I was not even aware of that sentence in bold until I saw it cited in Caldwell v. Caldwell, which was decided before Hein. In Hein, even the majority in the appeals court decision ignored Flast's above statement in bold -- Supreme Court Justice Alito, in an opinion joined by two other justices, said,

A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. 433 F. 3d 989. The majority read Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are “financed by a congressional appropriation.” 433 F. 3d, at 997. This was the case, the majority concluded, even where “there is no statutory program” enacted by Congress and the funds are “from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power.” Id.,at 994. According to the majority, a taxpayer has standing to challenge anything done by a federal agency or officer so long as “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is greater than “zero.” Id., at 995. . . . . .

. . . . . The Court of Appeals denied en banc review by a vote of seven to four. 447 F. 3d 988 (CA7 2006). Concurring in the denial of rehearing, Chief Judge Flaum expressed doubt about the panel decision, but noted that “the obvious tension which has evolved in this area of jurisprudence … can only be resolved by the Supreme Court.” Ibid.

BTW, the lead federal party when the case was in the appeals court was Chao and not Hein, so the correct citation for the appeals court decision is Freedom from Religion Foundation, Inc. v. Chao, 433 F. 3d 989 (7th Circuit 2006). Also, the district court decision in the case is designated as Freedom From Religion Foundation, Inc. v. Towey, No. 04–C–381–S (WD Wis., Nov. 15, 2004). All very confusing -- they should stick to one set of names for the parties.

Another appeals court judge said in the denial of the request for an en banc rehearing,
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The principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary. Taxpayers lack standing to complain about almost all expenditures. Flast v. Cohen, 392 U.S. 83 (1968), held that taxpayer suits about religious outlays are special . . . . To the extent that the Establishment Clause forbids taxation to support religion, people subject to the illegal levy may obtain relief, but plaintiffs in this litigation do not say that they have paid one extra penny because of the grant. Where's the concrete injury? The loss (if any) is mental distress that plaintiffs, who are bystanders to the challenged program, suffer by knowing about conduct that they deem wrongful. Article III does not permit courts to entertain such complaints. (citations omitted) . . . .Our panel's majority has concluded that the doctrine of taxpayer standing will be more logical if it covers administrative as well as legislative earmarks. I grant that proposition -- but comprehensiveness and rationality are not this doctrine's hallmarks. Why may taxpayers complain about outlays of cash but not about a distribution of real or personal property? (citation omitted) . . . . Why may taxpayers complain about modest expenditures (the grant in Laskowski was $500,000, or less than a cent per U.S. taxpayer) but not about slightly smaller ones? . . . .Perhaps Michael Newdow should have invoked his tax return, rather than his status as a father, to challenge the inclusion of "under God" in the Pledge of Allegiance. [my comment: the Supreme Court threw out Newdow's suit on the grounds of the technicality that he did not have legal custody of his biological daughter, his mascot in the suit] . . . .

But this arbitrariness is built into the doctrine as it comes to us . . . .The problem is not of our creation and cannot be solved locally. There is no logical way to determine the extent of an arbitrary rule. Only the rule's proprietors can bring harmony -- whether by extension or contraction -- or decide to tolerate the existing state of affairs. (emphasis added)

Regarding that statement in bold about mental distress not being grounds for standing to sue in federal courts: mental distress is the sole basis for many kinds of federal suits. Darwinists have failed to show why plaintiffs' mental distress alone was grounds for standing to sue in Kitzmiller v. Dover and Selman v. Cobb County but not in Caldwell v. Caldwell.

Also, though the Supreme Court granted the Flast plaintiffs standing to sue, the suit did not satisfy Flast's above condition that "[i]t will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute," because the federal statute in Flast did not expressly authorize the alleged unconstitutional expenditure of tax funds -- Flast said (392 U.S. 83, 85-87),

Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U.S.C. 241a et seq., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that "each pay[s] income taxes of the United States," and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers. 1 The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.

The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks [392 U.S. 83, 86] and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low-income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under 205 of the Act, 20 U.S.C. 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be "consistent with such basic criteria as the [appellee United States Commissioner of Education] may establish." The specific criterion of that section attacked by the appellants is the requirement

"that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate . . . ." 20 U.S.C. 241e (a) (2).

Under 206 of the Act, 20 U.S.C. 241f, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, [392 U.S. 83, 87] and other printed and published instructional materials "for the use of children and teachers in public and private elementary and secondary schools." 20 U.S.C. 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must

"provide assurance that to the extent consistent with law such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State . . . ." 20 U.S.C. 823 (a) (3) (B).

While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, "with the consent and approval of the [appellees]," and that such funds have been used and will continue to be used to finance "instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools" and "the purchase of textbooks and instructional and library materials for use in religious and sectarian schools." Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because "they constitute a law respecting an establishment of religion" and because "they prohibit the free exercise of religion on the part of the [appellants] . . . by reason of the fact that they constitute compulsory taxation for religious purposes." The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that if appellees' actions are deemed within the authority and intent of the Act, "the Act is to that extent unconstitutional and void."

Also, I dispute the second bolded statement in the Flast quote at the top of the post, i.e., "the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8." I fail to see the big difference between (1) being "generally beyond" Congress's taxing and spending powers enumerated in Art 1, Sec. 8 and (2) exceeding "specific constitutional limitations imposed upon the exercise of" those powers. Is the list of congressional taxing and spending powers in Art. 1 section 8 just a list of suggestions, or is it also a limitation on the powers of Congress? And how is the Establishment Clause the only "specific constitutional limitation upon . . . the exercise of those powers" that is grounds for taxpayer standing to sue? In his dissent in Hein, Justice Scalia -- joined by Justice Thomas -- said, as described in the syllabus --

The Court's taxpayer standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent because they have inconsistently described the relevant "injury in fact" that Article III requires. Some cases have focused on the financial effect on the taxpayer's wallet, whereas Flast and the cases that follow its teaching have emphasized the mental displeasure the taxpayer suffers when his funds are extracted and spent in aid of religion. There are only two logical routes available with respect to taxpayer standing. If the mental displeasure created by Establishment Clause violations is concrete and particularized enough to constitute an Article III "injury in fact," then Flast should be applied to (at a minimum) all challenges to government expenditures allegedly violating constitutional provisions that specifically limit the taxing and spending power; if not, Flast should be overturned.

And Justice Harlan said in his dissenting opinion in Flast, (392 U.S. 83, 130),

I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.

. . . .Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. (citation omitted)

Judges spend more time and effort trying to duck real questions than they spend trying to answer them.
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Establishment clause suit against UC Berkeley evolution website

"So I'm the bad guy. How did that happen?"

-- D-Fens in movie "Falling Down"



Background --
Federal courts have ruled that taxpayer status alone generally does not give standing to sue on an allegation that a government expenditure violates the Constitution. In Flast v. Cohen, 392 U. S. 83 (1968), the Supreme Court made an exception by saying that taxpayer standing is available in establishment clause lawsuits in particular. Then in Hein v. Freedom from Religion Foundation (2007), a three-justice plurality of the nine-justice Supreme Court held that taxpayer standing in establishment clause lawsuits should be available only for Congressional allocations of tax funds and not for executive branch allocations of tax funds -- even Fatheaded Ed Brayton called this arbitrary and nitpicking distinction between Congressional and executive-branch funding allocation "silly." These three justices, in combination with two more justices who held that the establishment-clause taxpayer standing granted by Flast should be eliminated completely (Justice Scalia, joined by Justice Thomas, wrote, "Flast should be overruled"), formed a court majority that ruled against granting standing to sue in the case. Hein is discussed here, here, and here on this blog.

In his concurring opinion in Hein, Justice Scalia wrote,

Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring *stare decisis* requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today’s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel.

Fast-forward: The website of the Pacific Justice Institute says,

May 12, 2008 - Pacific Justice Institute will present arguments this week to the Ninth Circuit Court of Appeals in a case challenging a federally-funded UC Berkeley website which promotes selected religious denominations that support evolution.

The lawsuit, filed by PJI in 2005, centers around a website designed by UC Berkeley to help teachers combat so-called misconceptions about evolution. The website tackles the "misconception" that religion and evolution are incompatible by claiming that "most" religious groups have no problem with evolution, and by directing visitors to statements from selected religious groups that support evolution. Meanwhile, the website derides religious beliefs that "contradict science" by teaching six-day creation. The site also warns teachers that student questions which expose the weaknesses of evolution "may be designed to disrupt the learning process" and should not be given the same respect as "legitimate" questions.

PJI is arguing that the taxpayer-funded UC Berkeley website unconstitutionally promotes certain religious groups at the expense of others. PJI Chief Counsel Kevin Snider, who will be presenting oral arguments to the Ninth Circuit on Wednesday, commented, "Whatever one's views on the origin of life or the theory of evolution, it is completely inappropriate for the government to declare that some religious denominations are better than others. The Supreme Court has long held that government must not decree what is orthodox in religion, and we are seeking to hold UC Berkeley to that standard."

Brad Dacus, president of Pacific Justice Institute, stated, 'Government actions that demean a group's faith clearly express state hostility toward religion and must be contested."

The title of the lawsuit is Caldwell v. Caldwell -- plaintiff Caldwell and defendant Caldwell are not related. The district-court opinion dismissing the suit is discussed in an article on Fatheaded Ed Brayton's blog. Fatheaded Ed does not allow me to leave any comments on his blog, so I can only make my comments here.

I assert that because of the following reasons, including reasons why Hein does not apply to Caldwell, the Caldwell decision is wrong:

(1) In Hein, the federal government was sued (Hein was the director of the White House Office of Faith-based and Community Initiatives) whereas Caldwell is just a suit against a state entity.

(2) In Hein, the plaintiffs challenged the expenditure of tax funds. However, the plaintiffs in Caldwell are not challenging the National Science Foundation funding of the UC Berkeley website but are challenging how the NSF funds -- and state funds -- are used by the UC Berkeley website. Hence, taxpayer standing in Caldwell is irrelevant because a ruling against UC Berkeley could not result in any tax reduction or refund for the plaintiffs (a favorite argument against taxpayer standing is that any tax reduction or refund that could result from a favorable ruling would be insignificant). Not every establishment clause suit needs to be a taxpayer suit. In lawsuits against a religious symbol on public property, it makes no difference -- or should make no difference -- whether the symbol is privately-funded or taxpayer-funded. Ironically, according to the topsy-turvy Hein ruling, there should be standing to sue when the symbol is privately-funded but not when the symbol is taxpayer-funded!

(3) The lawsuit in Hein challenged government officials' speeches, which the courts have no control over, whereas Caldwell challenges a website's fixed material, which the courts do have control over.

(4) The Caldwell plaintiffs did not assert taxpayer standing -- it was the defendants who raised the issue of taxpayer standing (see page 7 of the district court opinion).

(5) The district-court Caldwell decision was issued in March 2006, whereas the Supreme Court's Hein decision was issued later, in June 2007. Hence, the controlling precedent in the district-court Caldwell decision is Flast and not Hein, and even assuming arguendo that federal taxpayer status is the only basis of standing in Caldwell, Flast as commonly interpreted gave standing to sue in Caldwell (contrary to the arguments in the Caldwell opinion). The district court judge who decided Caldwell is not entitled to any Brownie points for a Supreme Court decision -- Hein -- issued after the Caldwell decision.

(6) Congress and the courts are not consistent about the "injured in fact" requirement -- the "citizen suit" provisions of environmental laws give all citizens standing to sue without any allegation that there is any actual or potential injury to anyone or anything, let alone actual or potential injury to the plaintiff(s) ! The plaintiff only has to allege that a government environmental agency failed to perform a non-discretionary duty.

(7) The Supremacy Clause says that the Constitution is the "supreme law of the land." To follow a "standing" requirement at the expense of the Constitution is like straining at a gnat and swallowing a camel.

(8)Flast v. Cohen is itself badly flawed. The Flast statement cited by Caldwell is " . . . . a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." (392 U.S. 83, 102 -- emphasis added). However, though the Supreme Court granted standing to the taxpayers in Flast, those taxpayers did not satisfy the preceding requirement. Also, I thought that the ruling in bold was established by Hein and not by Flast. I may comment more about Flast later.

(9) The "injury-in-fact" requirement is a misinterpretation of the "cases and controversies" clause of Article III of the Constitution. Anything can be a "controversy," including moot and hypothetical questions.

The appeals court decision in Caldwell won't be binding if that decision is not published (though FRAP Rule 32.1 says that the decision can be cited even if it is not published), so if that decision unfortunately upholds the district court decision but is not published, then another suit against the UC Berkeley website may be filed by another party.

I am now expecting an inevitable flood of invective from various trolls -- e.g. , Voice in the Urbanness, Kevin Vicklund, various Anonymous's -- saying that I know nothing about the law while they make no challenges to my above arguments.
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Fatheaded Ed misinterprets Epperson v. Arkansas

It would be so much easier if I could just post a comment on Ed's blog saying that I disagree with him, instead of posting a whole new article here.

An article on Fatheaded Ed's blog says,

Back to the Future on Evolution

This time in Maine, where at least one resident wants to party like it's 1967:

The decades-old controversy over the teaching of evolution in public schools is resurfacing in Somerset County.

A director of SAD 59 in the Madison area is urging the board to drop evolution from high school science curriculums on grounds that it's an unprovable theory that shouldn't be taught as fact.

Matthew Linkletter of Athens says neither evolution nor creationism belongs in a science curriculum.

Sorry, Matthew, the courts already ruled on this. Look up Epperson v Arkansas.

In a response to a comment, Ed says,
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a lurker wrote:

What does Epperson v Arkansas have anything to do with this.

In that case involved a law that made it illegal for a teacher to teach evolution and that a teacher could be charged with a crime if he did.

The court in Epperson did not rule that the law was unconstitutional because of the potential punishment, they ruled that it was unconstitutional because it was not religiously neutral. The court recognized that the only reason anyone wanted to prohibit the teaching of evolution was to give favor to their religious anti-evolution views.

For crying out loud, Ed, (his trademark expressions are "for crying out loud" and "batshit wingnuttery") the news article did not say that the SAD 59 director in Maine proposed prohibiting the teaching of evolution -- the article only said that he proposed dropping it from the curriculum.

Also, Ed misrepresented the Epperson decision. Of course the court's ruling was partly based on the potential punishment -- if the statute had been merely an advisory resolution with no potential punishment, then the statute would never have been challenged in the first place. And the court did not "[recognize] that the only reason anyone wanted to prohibit the teaching of evolution was to give favor to their religious anti-evolution views" -- the court only said that there was no "suggestion" of any other reason:

No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the religious views of some of its citizens. (page 107)

This is another example of Fatheaded Ed either misinterpreting the facts or not checking the facts. Furthermore, he censors comments that try to correct him about the facts or his interpretations of the facts. Yet he acts very offended when people don't consider him to be equal to a professional reporter, if not better. Fatheaded Ed is the poster child of unscrupulous BVD-clad bloggers.

BTW, Justice Black said in a concurring opinion in Epperson,

Under this statute, as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin's theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process . . . .

The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment . . . .

A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an "anti-religious" doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible's story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion . . . . .

Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists, but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible . . . .

I would either strike down the Arkansas Act as too vague to enforce or remand to the State Supreme Court for clarification of its holding and opinion.

Dissenting and concurring opinions are often ignored because those opinions are not binding precedents, but those opinions often make more sense than the majority opinions.

IMO evolution should be taught because it is something people should know and because it is useful in biology even if it is a hokey idea. The use of evolution in cladistic taxonomy has increased since Justice Black wrote the above words in his concurring opinion published in 1968. However, I also believe that the weaknesses of evolution as well as the strengths should be taught or that there should at least be evolution disclaimer statements to reduce offense to those who for various reasons are opposed to the teaching of evolution. Also, IMO the courts should declare the evolution controversy to be non-justiciable. [1] [2] [3]
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LA Senate passes academic freedom bill unanimously

NCSE has the story here. I didn't think that unanimous approval of such a bill by a state legislative body was possible, even in a fundy state like Louisiana. Two big monkey trials, Edwards v. Aguillard and Freiler v. Tangipahoa Parish, originated in Louisiana.

Time is running out for the stalled Florida academic freedom bills. Academic freedom bills have also been introduced in Alabama and Michigan. It is practically inevitable that a state will enact an academic freedom law one of these days. The wording of many of these bills makes them virtually lawsuit-proof. Legislatures are finally realizing that a lot of the criticism of Darwinism is scientific and not religious in nature.

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Justiciability of Scientific Questions III: inherent and prudential nonjusticiability

A comment I wrote in a comment thread on this blog gave me the idea for this post. This post is a follow-up to this post and this post.

I have not yet provided definitions of the terms "justiciable" and "justiciability." IMO a fairly good definition of justiciable is --

Of a claim or controversy, the condition of being suitable for adjudication by a particular court.

Some definitions use the term "capable" instead of "suitable," e.g. "capable of being decided by a court ."[1] and "referring to a matter which is capable of being decided by a court"[2]. However, I prefer the term "suitable" because anything is "capable" of being decided -- the questions of how many angels can dance on the head of a pin and whether bears shit in the woods are "capable" of being decided by a court. IMO the best definition would be, "constitutionally, legally, and practically suitable for adjudication by a particular court" (the word "particular" is important because different courts and court systems have different rules).

By way of review, I gave the following reasons why a scientific claim may be considered to be nonjusticiable:
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. . . the claim may be unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, contentious, a matter of opinion, or beyond the expertise of judges, or the science may be subject to change. Judicial decisions on the merits of scientific claims can have profound and far-ranging consequences, e.g., such decisions can affect the reputations and careers of scientists, affect funding for research, and affect the direction of scientific research.

Unfortunately, articles on justiciability generally do not give any reasons why some scientific questions should be considered to be non-justiciable and generally do not provide categories into which scientific questions might fall. For example, one article on justiciability has the following topics:

Article III case or controversy; advisory opinions; mootness and ripeness; standing; and judicial restraint (though this topic might be applicable, its discussion in this article is not).

And another article says,

To be heard by the federal courts cases must meet certain standards (they must be"justiciable)" (sic):
They must: Not seek an advisory opinion; Be brought by people who have standing; Not be moot; Be ripe for decision; Not be barred by the 11th Amendment; Not involve a political question.

This article about justiciability discusses the topics of standing, ripeness, mootness, advisory opinions, political questions, and Article III (which would include the "cases and controversies" issue).

Practically all of the reasons for nonjusticiability that are given by the above references are arbitrary and artificial reasons -- i.e., reasons that are based on the Constitution, laws, court rules, case law, custom, or whatever -- as opposed to reasons that are inherent in particular questions that are before the courts. In contrast, the preceding reasons for nonjusticiability of scientific questions are likely to be inherent in the questions themselves. So maybe there should be a new category of nonjusticiability -- to be called "inherent," "intrinsic," or "absolute" nonjusticiability -- meaning that the courts would have no basis for making a decision -- or that a decision would be improper -- even in the absence of artificial restraints on making a decision. It some ways this new category of nonjusticiability would be like the idea of insufficient evidence.

Also, I would like to introduce another nonjusticiability concept -- "prudential" nonjusticiability. In some court cases, it may be possible to make a rational decision about some question but it may be unwise to issue that decision because of potential bad consequences -- i.e., potential harm or the potential that the harm would outweigh the benefits. Of course, it is normal for court decisions to "harm" the losing litigants and others, so can "harm" be an argument against issuing decisions? Quite often the prospect of harm is used as an argument in court -- for example, it is commonly argued that a strict literal interpretation of the 2nd Amendment's right to keep and bear arms would result in harm to society. And a lot depends on the nature of the decision's harmful effects and the nature of whatever wrongs are redressed by the decision -- whether those things are intangible, financial, physical, reversible, irreversible, etc.. Jay Wexler's following comments about the Kitzmiller v. Dover decision involve prudential considerations:

The opinion's main problem lies in the conclusion that most evolution supporters were particularly pleased with -- namely, the judge's finding that ID is not science. The problem is not that ID is science. Maybe it is science, and maybe it isn't. The question is whether judges should be deciding in their written opinions that ID is or is not science -- a question that sounds in philosophy of science -- as a matter of law. On this question, the answer is "no," particularly when the overall question posed to the Court is whether teaching ID endorses religion, not whether it is or is not science. The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous to both science and freedom of religion. The judge's determination that ID endorses religion should have been sufficient to rule the policy unconstitutional.

. . . if one judge can practice philosophy of science, what is to stop others from doing the same? Perhaps the next judge to hear an ID case will decide that science simply means "the process of searching for the best logical explanations for observed data." In that case, schools might be allowed to teach … ID… Is this really a can of worms that ID opponents want to open?

However, even just a ruling that "teaching ID endorses religion" can harm the careers and reputations of scientists and adversely affect scientific research.

In summary, I have proposed the following two new kinds of nonjusticiability:

(1) Inherent (or intrinsic or absolute) nonjusticiability. Some reasons in the area of scientific questions are: the claim may be unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, contentious, a matter of opinion, or beyond the expertise of judges, or the science may be subject to change.

(2) Prudential nonjusticiability. Because a rational decision is possible, this is not true nonjusticiability, but it is like nonjusticiability in the sense that it is a reason to show judicial restraint by refraining from issuing a decision. Some reasons in the area of scientific questions are: decisions can affect the reputations and careers of scientists, affect funding for scientific research, and affect the direction of scientific research.
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Judge Jones' "true religion" missing from Supreme Court precedents

Judge Jones said in a commencement speech at Dickinson College that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state. (emphasis added)

However, in establishment clause histories given in two Supreme Court decisions, Everson v. Board of Education (1947) and Engel v. Vitale (1962), Jones' above "true religion" is not mentioned at all, not even as a contributing factor. Everson does mention "true religion," but it is not the kind of "true religion" that Judge Jones described above -- Everson says (page 12) that Madison "eloquently argued that a true religion did not need the support of law."

The hypocritical Judge Jones ignored Supreme Court precedent himself while falsely accusing his critics of ignoring Supreme Court precedent. In a speech at Bennington College, Jones said about media criticisms of his decision,
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What all of them had in common -- all of these criticisms -- was that they omitted to note the role of precedent, how judges work, the Rule of Law. Trial judges carefully find the facts in a case and apply existing precedent as handed down by higher courts -- most notably, in this case, the Supreme Court of the United States. There was simply no attempt [in these media criticisms] to illuminate those issues or educate the public . . . .

To hear these critics tell it, we live in a world where judges make essentially ad hoc determinations. This is really a false world that they tend to propagate, where judges rule according to personal bias, particular whims or political philosophies, or in order to please political benefactors -- or, worse perhaps, respond to the perceived public will at any given time. . . . And that gets into a still larger issue that I think is of somewhat crisis proportions, which I call a crisis in judicial independence. Many judges across the country feel exceedingly threatened by a public, a punditry, and a political establishment that tends to launch ad hominem attacks against individual judges when they disagree with them.

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Originalism under attack

A post on the Balkinization blog has links to abstracts of three scholarly papers attacking the doctrine of originalist interpretation of the Constitution. I am glad to see that originalism is finally under major attack -- I wonder what took so long. Originalism needs to be recognized for what it is, a very pernicious form of judicial activism. Originalists have gone so far as to put words in the mouths of the Founders.

One of the papers has the blunt title, "Originalism is Bunk". Another paper, titled "Originalism's Living Constitutionalism", says,
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Originalists' claims about the unique and exclusive legitimacy of their theory -- that originalism self-evidently represents the correct method of constitutional interpretation founder when one considers that originalists themselves cannot even begin to agree on what their correct approach actually entails. And their claims that originalism has a unique ability to produce determinate and fixed constitutional meaning, and that only originalism properly treats the Constitution as law and properly constrains judges from reading their own values into the Constitution, stumble when one considers the rapid evolution and dizzying array of versions of originalism . . . .A judge committed to the originalist enterprise in fact has significant discretion to choose (consciously or unconsciously) the version of originalism that is most likely to produce results consistent with her own preferences. Originalists might despise the notion of a living constitution, but they have gone a long way towards creating a living constitutionalism of their own, the very existence of which undermines their own rhetorical and normative claims to superiority.

The third paper is titled "Rebooting Originalism".

IMO the poster child of the evils of originalism is Judge Jones' infamous commencement speech at Dickinson College, in which he showed extreme prejudice against the Dover defendants -- regardless of whether or not Intelligent Design is a religious concept -- by saying that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, Judge Jones gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

Judge Jones was supposed to be neutral towards organized religions and he was not. By no stretch of the imagination are his above statements neutral towards organized religions.

In interpreting the establishment clause, originalists have portrayed the Founders as being everything from a bunch of blasphemous bible-burning satan worshippers to a bunch of bible-pounding holy-rolling fundies. Also, originalists have been conveniently ignoring the religious views of a very important Founder, George Washington -- see this and this.

The Federalist Society does not officially say that it is originalist but I strongly suspect that it is. It is named for the USA's first political party and the society's logo is a silhouette of James Madison. The question of Chief Justice John Roberts' membership in the society was an issue in his confirmation hearings.

Sometimes a broad non-originalist interpretation of the Constitution is necessary. For example, the Constitution does not generally prohibit states from interfering with interstate commerce, so the courts invented what is called the "dormant" commerce clause. Also, many big issues today were not even on the radar screens of the Founders -- e.g., environmental protection and freedom of speech on the Internet.
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George Washington the forgotten Founder

The Prayer at Valley Forge by Arnold Friberg

* Sung to the tune of Old-Time Religion

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I am generally opposed to the doctrines of "originalism," "original meaning," "original intent," etc., the ideas that the courts' interpretations of the Constitution should be solely based on the thoughts of the Founders (or Framers). However, IMO those who do support these doctrines should at least be whole-hog about it but most -- e.g., Fatheaded Ed Brayton -- are just half-assed about it, conveniently ignoring the views of the "father of his country," George Washington. An article titled "Equal Billing: On Religion, Washington's Views Should be Considered, Too," a book review of a book titled "Under God: George Washington and the Question of Church and State," in the Texas Review of Law & Politics, said,
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"Washington's opinions deserve at least as much attention as those of Jefferson." That is the final sentence, and raison d'etre, of Under God: George Washington and the Question of Church and State, by Tara Ross and Joseph Smith. Ostensibly a compendium of Washington's views on the proper relationship between church and state, Under God aims to correct a perceived historical wrong in the relative weight given by the modern Supreme Court to the views of Washington and Thomas Jefferson in interpreting the Religion Clauses of the United States Constitution.. .. . . .(page 2 of pdf file, page 208 of original document)

Jefferson, of course, coined the phrase "separation of church and state" in his oft-quoted 1802 Letter to the Danbury Baptists. This phrase has seared itself into the public consciousness as the dominant metaphor for the meaning of the Religion Clauses of the First Amendment, in no small part because the Supreme Court has so frequently employed it in rendering Religion Clause decisions. In the body of their book, Mrs. Ross and Mr. Smith show that Washington would have rejected this metaphor. To the contrary, he believed it important "for government to accommodate and even to encourage the practice of religion, albeit in ways that were typically non-denominational and tolerant of religious minorities." The authors further suggest that Washington's views were closer to the American mainstream than were Jefferson's -- before, during, and after the framing of the Constitution and the enactment of the Bill of Rights -- and thus are a better guide to ascertaining the original meaning of the First Amendment . . . . (pages 2-3 of pdf file, pages 208-209 of the original document)

. . . After reading Under God, one cannot dispute that the views of Washington deserve greater consideration than they have heretofore received as Religion Clause litigation and legal scholarship. Do the views of Washington deserve greater consideration than the views of Jefferson, as Mrs. Ross and Mr. Smith suggest, or of Madison, who at times appeared to be as ardent a separationist as Jefferson? That, of course, depends: first, on the extent to which one embraces originalism as an interpretive philosophy(emphasis added); second, on the extent to [which] Washington was representative of the views of the framers, or of the common understanding of what the Religion Clauses meant in 1789. On the latter question, Mrs. Ross and Mr. Smith offer reasons to believe that Washington was closer to the American center than was Jefferson, but the former question is beyond the scope of their project and a matter of sharp disagreement among current members of the Supreme Court. Suffice it to say, the life of Washington presents an alternative vision to that of a "high and impregnable" wall of separation between church and state. (page 15 of pdf file, page 221 of original document)

This book Under God: George Washington and the Question of Church and State illustrates the folly of the "original intent" doctrine. That stupid judge John E. Jones III showed extreme prejudice against the defendants in Kitzmiller v. Dover -- regardless of whether or not Intelligent Design is a religious concept -- by saying in a Dickinson College commencement speech that his decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, he gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

What if some judge(s) came along with the arguable notion that the USA was founded as a Christian nation and that the only purpose of the establishment clause was to prevent individual Christian sects from being established as official state religions? We could then end up with a ruling that, say, non-sectarian school prayer is constitutional.

IMO the best interpretation of the establishment clause is Justice O'Connor's "endorsement test" and she didn't need to use the "original intent" doctrine to attempt to support the test. Here is her statement of the endorsement test, from her concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 687-688:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. E.g., Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. See generally Abington School District v. Schempp, 374 U.S. 203 (1963).

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