Cal Web site draws anti-evolution lawsuit CHURCH-STATE SEPARATION CASE

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If you think dying can keep you out of court, look at Charles Darwin.

The celebrations of his 200th birthday coincide with an anti-evolution lawsuit that has just landed him on the doorstep of the U.S. Supreme Court.

A Christian schoolteacher from Roseville (Placer County) who takes the Bible literally says a UC Berkeley Web site about evolution is unconstitutional, like a cross in a public park.

The Web site, "Understanding Evolution," is supported by government funds and violates the constitutional separation of church and state, according to the suit by Jeanne Caldwell.

Rebuffed by lower courts, she has appealed to the nation's highest court, and UC joined the battle this week, saying in its response that the Internet is not like a park and that, in fact, Caldwell has no right even to file the suit.

The sides wait to see whether the justices will take the case and tackle the unsettled issue - not of evolution, but of whether the Internet is a public space that needs new principles to enforce the state-and-religion barrier.

At issue is one page, out of 840 on the Web site, that says Darwin's theory and religion can co-exist. The page - titled "Misconception: 'Evolution and Religion are Incompatible' " - also features a drawing of a smiling scientist holding a skull and shaking hands with a smiling cleric holding a book with a cross on it.

Caldwell says UC's government-funded assertion contradicts a religious belief that evolution and religion are incompatible and amounts to a state position on religious doctrine. This violates the establishment clause of the First Amendment barring Congress from making any law respecting the establishment or exercise of religion, she says.

She first sued in 2005. UC thwarted the suit in federal district court and the Ninth U.S. Circuit Court of Appeals in San Francisco by successfully arguing that Caldwell's exposure to the Web page is too minimal to cause the type of injury that would make her eligible to sue. The lower courts threw the case out based on her eligibility and didn't rule on whether the Web page violates the First Amendment.

The Web page is presented as a resource for teachers, and Caldwell said she visits that section as a teacher and participant in the evolution debates and has the same right to sue as the plaintiff who was allowed to sue over a cross in the Mojave National Preserve.

Allowing the lower-court rulings to stand, Caldwell says in her Supreme Court appeal, "would make government Web sites an Establishment Clause free zone." Because the Internet is increasingly used by the government to communicate with citizens, the Supreme Court needs to address the issue, she says. She is represented by the conservative Pacific Justice Institute in Sacramento and her husband, attorney Larry Caldwell.

Attorneys for UC say the lower-court rulings did not make the Internet immune to such claims but that existing legal principles are sufficient to dismiss Jeanne Caldwell's eligibility to sue. They also say deciding a new standard for the Internet would violate the role of the Supreme Court, which is not to open new legal frontiers but to resolve issues that arise from a body of lower-court rulings.

Roy Caldwell, director of Cal's Museum of Paleontology, the site's sponsor, said some UC officials worry that the high court may want to clarify standards on "standing," or eligibility to sue. (He's not related to Jeanne Caldwell.)

On the eve of Darwin's birthday last Thursday, a new Gallup Poll was released showing that 39 percent of Americans believe in evolution, with 25 percent not believing in it and 36 percent holding no opinion. Among weekly churchgoers, 24 percent believe in evolution and 41 percent do not.