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Caldwell v. Caldwell (9th Cir. - Oct. 3, 2008)

By Shaun Martin

How things can change. When I first started reading this opinion (by Judge Rymer), my initial reaction was that (1) the plaintiff had standing to bring the action, but (2) the merits of the lawsuit were incredibly weak. But as to the first point, Judge Rymer -- as well as Judge Betty Fletcher's concurrence -- persuaded me that plaintiff probably didn't have standing. Even under the fairly aggressive view of taxpayer standing applied in Establishment Clause cases.

The opinion doesn't address the second point, but my reaction to that one changed as well. It's a somewhat unique Establishment Clause claim, as it's a claim brought by a fundamentalist Christian against a government website that's pro-evolution. My initial reaction was: "That's absurd. Of course the government can create a secular website explaining evolution. This is totally frivolous." But then I read what at least a portion of the site contains, the most troubling portion of which consists of an attempt to explain how evolution is consistent with various religious beliefs. Upon reflection, I'm less than entirely persuaded that the government can make express religious arguments or claims, or attempt to interpret a religion (and express that interpretation with public funds). I'm still not sure how I'd come out on the merits, but I didn't think that the challenge was nearly as frivolous as I initially suspected it to be.

First reactions aren't always correct. At least if you're willing to rethink things. Which one totally should be.

So this one raises a lot of interesting questions. It's a good way to start your mind working on a lazy Friday morning.

Full post as published by California Appellate Report on October 03, 2008 (boomark / email).