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Darwinist Hypocrisy in the UC Berkeley Website Lawsuit: Is There Really “No Such Thing as a Little Constitutional Violation”?

Casey Luskin

During their opening statements in the Kitzmiller v. Dover trial, the plaintiffs argued that “there is no such thing as a little constitutional violation,” and thus Dover’s requirement that biology teachers read to students a short 4-paragraph statement that briefly mentioned intelligent design (ID) could be unconstitutional. (See Trial Transcript, Day 1, pg. 13.) But this is not how attorneys defending the pro-evolution UC Berkeley Evolution website argued in the Caldwell v. Caldwell lawsuit, where the 9th Circuit recently ruled that a parent could not sue because she had suffered no “injury in fact,” even though she had observed government-endorsement of pro-evolution theology on a government-sponsored website. Apparently when Darwinists themselves face accusations of violating the establishment clause, they happily fall back to arguing that a “little constitutional violation” is not really a constitutional violation at all.

But this is only the beginning of hypocrisy highlighted by this case: Darwinists often attack ID for allegedly making religious arguments, but in this case, it was the Darwinists who were making religious arguments for evolution. The website at issue was created to assist teachers in teaching evolution. What it really did was help teachers promote pro-evolution religious viewpoints in the classroom. The website claimed that it is a “misconception” to believe that “evolution and religion incompatible,” showing a cute graphic of a priest and a scientist holding hands, and referring readers to religious groups who endorse evolution. (Of course, it linked to no religious viewpoints that oppose evolution.) Can you imagine the outcry if the government told teachers that it is correct to teach “evolution and religion are incompatible” and then referred teachers to statements by conservative Christian denominations that oppose evolution?

Darwinists want to have it both ways: When the government supports ID, they want you to believe it unconstitutionally endorses a religious viewpoint and “there is no such thing as a little constitutional violation,” but when the Darwinists use the government to promote pro-evolution religious viewpoints on government-funded websites, they get off because there is no “injury in fact.”

The “Little Constitutional Violation”
A parent, Jeanne Caldwell, brought a lawsuit against the administrators behind the UC Berkeley Evolution website because one of its pages endorses pro-evolution religious viewpoints. According to the 9th Circuit’s recent ruling in the case, the plaintiff contends that the website unconstitutionally endorses the following religious viewpoints:

  • “religious beliefs are limited to the spiritual world;”
  • “the theory of evolution is not in conflict with properly understood Christian religious beliefs;”
  • “the ‘Misconception’ page links to a National Center for Science Education (NCSE) web page that includes statements by many religious organizations in support of the endorsed position that most Christian and Jewish religious groups have no conflict with the theory of evolution; and that the site seeks to proselytize public school students and the public to adopt these viewpoints.”

The plaintiff Caldwell thus argued that “the site seeks to proselytize public school students and the public to adopt these viewpoints” and unconstitutionally “endorses” religious viewpoints that accept neo-Darwinism. Specifically, this violates the U.S. Supreme Court’s ruling in Epperson v. Arkansas that the government must maintain “neutrality between religion and religion…” (Epperson v. Arkansas, 393 U.S. 97, 104 (1968).) (For further background, we’ve previously reported on this case here, here, and here.)

Taking the Easy Way Out
In its recent ruling in the case, the 9th Circuit argued that the plaintiff would suffer only “generalized harm” and thus did not suffer injury sufficient to confer standing to bring a lawsuit. It’s important to observe that the 9th Circuit did not take any final stance on whether the website actually unconstitutionally endorsed religion. The court managed to avoid ruling on the merits of the case by dismissing the lawsuit due to an alleged lack of standing, thus avoiding a politically unpopular holding that Darwinist academics had violated the establishment clause.

Under this ruling, the court simply found that if a citizen visits a government website, and feels that the website violates the establishment clause, that there is no injury sufficient to confer standing to sue. However, there were hints in statements by one of the judges during oral arguments that if a plaintiff with proper standing were to bring suit against this website, they might prevail:

“So when there’s this particular page which is the focus of this which says that religion and evolution are not incompatible, now is that a position taken by the museum, taken by the institution, the university?” [19:40]…

“Does [the university] say this is not necessarily our position but this is a way that teachers have dealt with the problem? It doesn’t say that…” [20:24]

“If in fact this is the pronouncement of the government as to its view of religion, I think that that is a critical point.” [20:55]

But the court’s recent ruling never reached the merits of the plaintiff’s argument, claiming that the plaintiff lacked standing to sue. In other words, the government’s actions may (or may not) be constitutional, but this plaintiff has not suffered a sufficient injury that would allow the court to decide this case. Citing to the case School District of Abington v. Schempp, 374 U.S. 203 (1963), both the majority and concurring opinions implied that if a teacher were to use the website as a teaching tool in the classroom, this would certainly meet the requirements of standing, and a lawsuit could be brought in such a circumstance.

For the Average Citizen, Is the Internet an “Establishment-Clause-Free-Zone”?
As I previously observed, such reasoning implies that the internet is an “establishment clause free zone” when it comes to the average citizen who feels that a government website establishes religion. According to this case, the average citizen visiting the following could not sue:

  • A school board’s website which instructs teachers to teach that evolution is incompatible with religion.
  • A state-run medical center’s website explaining 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.”
  • The website of a small rural school district in Pennsylvania posting the entire text of Genesis 1-3 as the “true creation story.”

The 9th Circuit’s refusal to decide the merits of this lawsuit made it very easy for them to avoid the necessary–but politically unpopular–ruling that Darwinists in this case had violated the establishment clause. Perhaps future cases will force the 9th Circuit to grapple with illegal government endorsement of pro-evolution religious viewpoints.


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



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