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Dismissal of Lawsuit against Evolution Website Implies Internet is an Establishment-Clause-Free-Zone

Earlier this month, controversial federal judge Phyllis J. Hamilton in San Francisco dismissed the Caldwell v. Caldwell lawsuit which alleged that the government-funded NCSE/UC Berkeley "Understanding Evolution" website endorses a particular religious view of evolution. However, Judge Hamilton's order dismissing the lawsuit is nothing short of bizarre. It implies that the internet is an Establishment-Clause-Free-Zone where government websites are free to proselytize or establish religion at will. It is difficult to imagine Judge Hamilton's peculiar ruling being upheld on appeal.

According to a Daily Californian article, attorney Larry Caldwell believes that by sponsoring the Understanding Evolution website "the state of California is taking a position on religious issues and advocating certain religious values, which is clearly a violation" of the Establishment Clause. Perhaps the most egregious example of such a violation is the title of a page which states, "Misconception: 'Evolution and religion are incompatible.'"** By labeling this belief a "misconception," the government is clearly taking sides on what is essentially a religious and not a scientific question: the question of whether religion and evolution are compatible. Religious persons who believe that evolution is incompatible with their religion might feel that this website is forcing them to change their religious beliefs about evolution. The problematic religious graphic accompanying this website was previously discussed here, here, and here.

Yet according to Judge Hamilton, a citizen being personally offended by seeing a religious message from the government on the internet isn't sufficient "injury in fact" to give standing to bring a civil lawsuit. Moreover, Judge Hamilton implied that plaintiff Jeanne Caldwell had suffered merely a "psychological" injury rather than an injury in fact, when in reality there was an injury in fact due to Caldwell's inability to use the website without facing a religiously offensive message.

Problems with the Ruling
While there were some correctable reasons for the dismissal, the most bizarre aspect of the dismissal order was the holding that state-funded websites are exempt from violations of the Establishment Clause. Judge Hamilton held:

Moreover, the unique nature of the internet cannot be overlooked. It is a vehicle for communication that is not capable of ready analogy to any other. The internet contains millions upon millions of websites and webpages, spanning a limitless number of subjects and target audiences. It is in daily use by millions, all of whom decide on a voluntary basis (for the most part) which websites and webpages to access. Given this massive appeal and impossibly broad spectrum, it is simply inconceivable that the mere viewing of certain webpages that do no more than make plaintiff feel "offended" and like an "outsider" is sufficient to give rise to injury in fact standing. If this were so, then every webpage on the internet could give rise to a claim, simply based on an individual's negative emotional response to that webpage. This is particularly significant, when one considers that the very nature of certain websites and webpages is to be provocative, and to risk offence [sic].

(Caldwell v. Caldwell, No C 05-4166 PJH, Order Granting Motion to Strike and Motion to Dismiss (hereafter "Dismissal Order"), pg. 12; note: the British spelling for "offence" was used in the original order.)

Judge Hamilton essentially ruled that no one has standing to challenge a violation of the Establishment Clause that occurs on the internet.

But Hamilton's analysis simply begs the question. Perhaps many provocative pages do exist on the internet, but all internet websites are not in question here--only those sponsored by the U.S. government. Provocative actions which might offend people happen in the world all the time. But we can only prohibit those religiously offensive actions which constitute action by the government, not those by a private group or citizen. Moreover, courts have developed specific tests (i.e. Lemon test, and its flavors, such as the Endorsement test) to perform the very job Hamilton claims cannot be done: discriminating between a mere "negative emotional response" and government action which actually establishes religion, thus causing real injury. There is no rationale, in principle, why government websites on the internet cannot be a legitimate targets of lawsuits alleging violation of the Establishment Clause.

Hamilton's ruling that the internet is an Establishment-Clause-Free-Zone could lead to many unwanted consequences. Under Judge Hamilton's rationale, the state of California or a federal agency could establish a church on the internet, and no one would have standing to sue to prevent it. Apparently the judge believes there would be no legal basis to prevent any of the following hypothetical actions:

  • A school board setting up a website to train teachers to teach that evolution is incompatible with religion.
  • A state-run medical center explaining on its website how people can heal themselves through Hindu (but not Christian or Buddhist) meditation.
  • A state-funded abstinence program telling teenagers on its website to remain virgins because Jesus commands it.
  • A school district in Dover, PA posting the entire text of Genesis 1-3 as the "true creation story" somewhere on their school district website.
Is this really what Judge Hamilton wants?

In Fact There Was Great Injury
Judge Hamilton also dismissed the suit because supposedly there was no injury in fact. The Dismissal Order explains:

Here, plaintiff alleges that the injury she suffered was in being "offended" by viewing the website, feeling like an "outsider," and "being exposed to the government endorsed religious messages," to her harm. See Complaint at ¶ 26. On their face, these allegations fall directly within Valley Forge's prohibition on standing where a plaintiff alleges only a "psychological consequence" produced "by observation of conduct with which one disagrees." As such, plaintiff's allegations state only a generalized grievance against defendants, and are insufficient to confer injury in fact.

(Dismissal Order, pg. 11)

Judge Hamilton misunderstands constitutional law and misinterprets the facts of the Caldwell lawsuit compared to the holding in the Valley Forge case, especially considering how Valley Forge has been interpreted by the Ninth Circuit.

(1) Misunderstanding of Constitutional Law
Hamilton's putting of the word "outsider" in quotes might make one think that this is not a legally correct term. In reality, considerable precedent shows that alleging that one was made to feel like an "outsider" due to government endorsement of a religious viewpoint is commonly associated with a legally redressible injury. When formulating the endorsement test, Justice O'Connor wrote:

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.

(Lynch v. Donnelly, 465 U.S. 668, 668 (1984), Justice O'Connor, Concurring (emphasis added).)

According to numerous cases employing the endorsement test, government action which endorses a religious viewpoint such that the plaintiff alleges being made to feel like an "outsider" is the beginning of a valid injury in fact sufficient to bring a lawsuit. For example, in Santa Fe Independent School District v. Doe, 530 U.S. 290, 309-310 (2000), the U.S. Supreme Court found it highly relevant that various attendees at a high school commencement ceremony were made to feel like "outsiders" as a result of the passing--but non-enforcement--of a policy to permit a non-sectarian prayer at the ceremony. One such case relying upon this precedent happens to be Kitzmiller v. Dover, where Judge Jones wrote that the Dover Policy was unconstitutional because:
A reasonable observer is presumed to know the social meaning of the theory-not-fact deliberate word choice and would "perceive the School Board to be aligning itself with proponents of religious theories of origin," thus "communicat[ing] to those who endorse evolution that they are political outsiders, while ... communicat[ing] to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders."

(Kitzmiller v. Dover, 400 F.Supp.2d 707, 723 (M.D.Pa. 2005) (quoting Santa Fe Independent School District v. Doe))

Yet Judge Hamilton's order could be taken to imply that being made to feel an "outsider" by the Understanding Evolution website could not contribute to Jeanne Caldwell's injury.

(2) Misapplying the Facts and Misinterpreting Precedent
To reiterate, Judge Hamilton dismissed the Caldwell case because she claimed plaintiff Jeanne Caldwell had no injury in fact, as "these allegations fall directly within Valley Forge's prohibition on standing where a plaintiff alleges only a 'psychological consequence' produced 'by observation of conduct with which one disagrees.'" (Dismissal Order, pg. 11).

In Valley Forge, a plaintiff alleged that the federal government violated the Establishment Clause when they learned, via a news release, that the government had transferred federal property to a Christian college. The U.S. Supreme Court held that there was only a "psychological consequence" of this action to the plaintiff, and no real injury in fact. In Buono v. Norton, 371 F.3d 543 (9th Cir. 2004), the Ninth Circuit distinguished Valley Forge by recognizing that a citizen who cannot use public land without being subjected to an offensive religious message has an injury in fact. In Buono, an Oregonian man was offended by seeing a five to eight foot cross located eleven miles off the interstate and visible for only one hundred yards in a 1.6 million acre federal desert preserve in Southern California had standing to sue the U.S. Department of Interior and require the cross to be removed. The Ninth Circuit held that "Such inhibition constitutes 'personal injury suffered ... as a consequence of the alleged constitutional error,' beyond simply 'the psychological consequence presumably produced by observation of conduct with which one disagrees.'" (Buono, 371 F.3d at 547)

Similar to Buono, in this Caldwell v. Caldwell lawsuit, it is clear that there is much more than a mere "psychological consequence." Jeanne Caldwell cannot utilize the Understanding Evolution website without being subjected to an offensive message. As stated in the complaint:

Plaintiff desires to participate as an informed citizen in these elections, public debates and processes, so she makes use of the "Understanding Evolution" website described in paragraph 13 below as a resource, to learn how the University of California recommends that public science teachers teach evolution to K-12 students in California. However, when plaintiff utilizes the "Understanding Evolution," she is offended by the government's endorsement in the website of religions and religious denominations that subscribe to the religious doctrine that their religious belief is compatible with evolutionary theory, and the government's attempt to proselytize citizens such as herself to adopt the government's preferred religious beliefs about evolution, and plaintiff is offended by the government's express and implicit disapproval in the website of any irreligious or religion or religious denominations that subscribe to the religious doctrine that their religious belief is incompatible with evolutionary theory.

(Caldwell v. Caldwell complaint, at page 12)

That Jeanne Caldwell had standing to sue can be seen for a number of different reasons:
  • In the Buono case, the plaintiff had standing to sue, even though he had to travel hundreds of miles out of his way just to get to the public preserve, and then had to drive to a particular "football field" sized spot in this vast preserve even to see the allegedly offensive cross. Also, in Buono it was found that a citizen has the right to use the desert preserve without encountering the "offensive" message. Similarly, once the state puts up an evolution website and invite the general public to use it, as they have in this case, citizens have the right to be able to use the ENTIRE website without encountering an unwelcome governmental religious symbol or message. But according to Hamilton, Jeanne Caldwell who is unable to access the entire Understanding Evolution website from her home without seeing an offensive message of religious endorsement could have suffered no injury in fact.
  • In Santa Fe, the prayer policy at issue had not even yet been implemented, such that there was no concrete injury but only a psychological feeling of being an "outsider" as a result of the passage of the policy and impending prayer, and yet there was standing to sue. Surely Caldwell has suffered a greater injury than the one in Santa Fe!
  • Ironically, the University of California had urged Judge Hamilton to look to the "static government-sponsored religious display" cases for the proper legal analysis for her to use in deciding this case on the merits. Then, when Caldwell cited those Ninth Circuit's "static religious display" cases on the standing issue, the University of California (and Judge Hamilton) claimed those cases don't apply.
Perhaps following precedent was not important in this Dismissal Order.

Some Take-Home Messages
Judge Hamilton disregards the holding in Buono because it's a case about a citizen's right to full use of a government-owned public parkland rather than a citizen's right to full use of a government-owned public website. But there does not seem to be any legitimate rationale for permitting the Establishment Clause to apply on government-owned parkland but then claiming it doesn't apply to government-owned cyberspace. (Ironically, the Buono case involved the religious display involved was a cross, and there is a cross depicted on one of the challenged pages of the Understanding Evolution website.)

The plain message of this Dismissal Order should be clear: The Establishment Clause does not apply to the internet. Under Hamilton's order, state legislators who are atheists can apparently start using state-funded websites to promote secular humanism. State Attorney Generals who are Christians can apparently start quoting Bible verses all over websites for the purpose of proselytization. And any Governors who are Orthodox Jews can start making official recommendations for keeping Kosher over the upcoming Passover holiday for state residents. Following the logic of Hamilton's order, apparently anything goes when it comes to the government endorsing religion on the internet.

The message of this blog post should also be clear: Judge Hamilton's order was wrongly decided, and the legality of the NCSE/UC Berkeley "Understanding Evolution" website is far from settled.

** According to the dictionary, a "misconception" is a "mistaken thought." Thus according to the Understanding Evolution website, it is a mistaken thought to believe that evolution and religion are incompatible. The question is of course "whose religion?" Obviously, it's only a misconception if you don't adopt the website's endorsed version of religion.