Our friend Law-Suit Larry has filed a petition for certiorari in the U.S. Supreme Court, asking that Court to review the Ninth Circuit’s decision in his lawsuit against the U.C. Berkeley [Understanding Evolution_website.](http://evolution.berkeley.edu/) (We’ve blogged about this case in the past.) He was assisted in this work by the Pacific Justice Institute, an organization that focuses largely on cases relating to religion issues. Caldwell is representing his wife as the petitioner, but the respondent coincidentally is also named Caldwell, meaning that the case is _Caldwell v. Caldwell, with Caldwell as one of the lawyers, and they’re all different people.
I’ve read the petition (which is not online), and it’s an interesting piece of work. It urges the court to take the case on the grounds that the theory of “standing” needs to be clarified in the context of web pages. (Non-lawyers for whom these terms are confusing should start by reading this)
According to the petitioners, the Ninth Circuit screwed up when it declared that Mrs. Caldwell lacked standing to challenge the constitutionality of the evolution website’s receipt of federal funding through the National Science Foundation. That Ninth Circuit decision (which you can read here) held that Mrs. Caldwell lacked standing because her complaint was more like a generalized, abstract grievance than a genuine personal injury due to allegedly unconstitutional conduct. Thus there was “too slight a connection” between conduct she claims is unconstitutional and any potential injury to her.
The petitioners argue that the Ninth Circuit’s focus on (a) the “permanence” of the website and (b) the “attenuated connection” between Mrs. Caldwell and the website was in error. After all, they point out, the website was around for at least three years when the lawsuit was filed, and that seems pretty permanent. On the other hand, if “permanent” means “unchanging,” then websites would always be immune from constitutional scrutiny since they could be changed at any time. Nor, they continue, should courts consider the nature of the connection between a litigant and the allegedly unconstitutional website by considering the motives for visiting the website. To do so would require of courts the “inherently arbitrary” task of weighing the importance of a person’s motives when, say, accessing a government-funded website, or going to a government-owned park, or what have you.
These are plausible arguments, and in fact they identify some genuine problems with the standing theory adopted by the Ninth Circuit in this case. Yet the fatal flaw in the case lies in the assumption that the petition makes while carefully glossing over the essential issue: namely, the petition claims that the _Understanding Evolution_website makes a government-endorsed statement on a religious issue. In fact, it does not.
The website makes purely factual claims that Mrs. Caldwell, for religious reasons, happens to find offensive. That is crucially different from a government statement on the truth or falsehood of a religious matter. The government is allowed to make factual, objectively truthful statements about any number of things, including characterizations of the religious beliefs of individuals or groups, even if readers like Mrs. Caldwell might find those statements to be offensive for whatever reasons–including religious reasons. The government may say “Muslims believe that there is only one god and that Mohammed is his prophet,” even if you or I find such a statement to be offensive. One may dislike that tax dollars are being used to support the publication of that statement–but it is not a violation of the First Amendment, which only prohibits the government from taking a position, not from describing_the positions taken by _others.
The Understanding Evolution website says–truthfully–that
Religion and science (evolution) are very different things. In science, only natural causes are used to explain natural phenomena, while religion deals with beliefs that are beyond the natural world.
The misconception that one always has to choose between science and religion is incorrect. Of course, some religious beliefs explicitly contradict science (e.g., the belief that the world and all life on it was created in six literal days); however, most religious groups have no conflict with the theory of evolution or other scientific findings. In fact, many religious people, including theologians, feel that a deeper understanding of nature actually enriches their faith. Moreover, in the scientific community there are thousands of scientists who are devoutly religious and also accept evolution.
These are not religious statements, but statements _about_religious beliefs, and government is allowed to make statements _about_religious beliefs. In fact, government can make statements about religious beliefs that are false! It is just not allowed to say _that a religious belief is itself_false. Statements _characterizing_religion, or _describing_the beliefs of others, do not depend for their truthfulness on the content of a religious dogma or creed, and are therefore secular in nature; they are statements that the government is constitutionally free to make under the First Amendment. They are not _religious_statements.
Government may convey messages _about_religion; that’s why public libraries may stock the Bible on their shelves, or fund museums about religious movements or pay for the restoration of historic churches. Government buildings may even host Yuletide crèches and menorahs–so long as it is clear from the context that the state is not endorsing these views. It does not violate the First Amendment for the government to convey messages about religion, so long as it does not make statements _within_religion.
But the petition scrambles to dodge this central issue. “[Mrs.] Caldwell submits that her contact with an unwanted religious message on the government-owned and authored Understanding Evolution_website is equivalent to a citizen’s contact with an unwanted religious message such as a Latin cross on government-owned land,” the petition says on page 19. That equivalence is non-existent, since the website does not convey a “religious message,” but a _message about religion, which is not the same thing. And again, on page 20: “she is unable unreservedly to use Understanding Evolution without encountering the unwanted religious message.”
Since this “religious message” in reality consists of Mrs. Caldwell’s personal (religious) discomfort over a truthful statement of an objective, non-religious fact about_religion, imagine what it would mean if her argument were to prevail! It would give members of any religious group a heckler’s veto over any government-associated presentation of factual matters about competing religious views. The Mormon Church could shut down the recent PBS special on _The Mormons_. The National Trust for Historic Preservation would not be allowed to fund the restoration of historic churches like the St. James AME Church in New Orleans. Indeed, the argument would have some ironic consequences: government-funded schools would have to eliminate all education on the history of religion, of religious controversies or movements or conflicts…. That is, schools would have to eliminate the _only_classes where Intelligent Design creationism _may_appropriately be taught: in classes that teach about the content of religious viewpoints. After all, some students might be able to unreservedly use the facilities of the school without encountering an “unwanted religious message”–_i.e., a characterization of the religious beliefs that some people hold, and at which students might individually be offended because of their own religious beliefs.
By skimming over the central issue in the entire case, the Caldwell_petition seems to present a couple interesting arguments. But they are a façade for a baseless lawsuit that was properly dismissed. As the Ninth Circuit concluded in its decision, “people inside and outside the academy may (and do) take different views in the ongoing debate over whether science and religion may coexist, [but Mrs.] Caldwell’s offense is no more than an ‘abstract objection’ to how the University’s website presents the subject.” _Caldwell v. Caldwell, 545 F.3d 1126, 1133 (9th Cir. 2008).