No offense, man, but it’s way too fuckin’ cold in Canada. If I’m gonna relocate, it’s going to be some place warm.
The point of a 12(b)(6) motion is that the judge assumes everything alleged in the complaint to be true:
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If the Judge considers extrinsic materials extrinsic to the complaint, then the motion is decided under Rule 56.
But the idea here is that whatever the complaint claims about the statements about religion must be taken as true. The motion will only be granted if the truth of those statements about religion is irrelevant.
My theory is that it’s the heat that drives so many Americans batshit crazy. 
Doesn’t seem to have bothered the Aussies and they’re from basically the same stock as we 'Merkins and you Canucks.
Not a problem: just come to Windsor, Kingsville, Amherst, or Leamington, Ontario, south of the U.S., in Essex County, “Canada’s Sun Parlour.”
Sun Parlour. Hmph. Too drizzly during the winter for my taste.
Let’s get some real sun action going. I vote that Canada finally take the Turks and Caicos Islands off Britan’s hands.
We’ll swop you for British Columbia. It’s named after us, anyway.
Hey, your (honest) fellow countrymen named it. I’m just quoting what I hear on the radio broadcast from that area.
What Gfactor said, with the caveat that a Rule 12 motion to dismiss in the Ninth Circuit can take account of matters outside the four corners of the complaint via the doctrine of incorporation by reference (with the acknowledgement that if matters that are not incorporated are considered, the judge must convert the Rule 12 motion to a Rule 56 motion), so I’d argue the actual statement made by Cal is before the judge, even if Caldwell didn’t quote it. Here’s a longer explanation:
**Whether the statements made on the website are truthful or not is irrelevant. ** For purposes of this lawsuit, Caldwell does not care whether, in fact, a belief in evolution is consistent with a belief in Christianity or Judaism.
Caldwell’s beef is that the website even makes those statements at all. For purposes of the 12(b)(6) motion, the judge will assume that everything Caldwell pleads truly happened – i.e., Berkeley has this website, it makes these statements, etc. On a 12(b)(6), the judge takes the facts that are pleaded as true, but does not assume the truth of things like conclusions of law (i.e., the judge will disregard the part of the complaint where Caldwell pleads, “And all this violates the First Amendment”). So what the judge must do on a 12(b)(6) is assume that Berkeley made the statements that Caldwell claims Berkeley made. (Think of it like getting around hearsay: we’re not offering the statement for its truth, your honor, but simply to show that the statement was made). As a refresher, here’s what the website allegedly said:
The truth of this statement is not at issue; instead, Caldwell challenges whether a public entity like Berkeley can make this statement without violating the First Amendment.
So the judge can say, let’s apply the Lemon test:
As a matter of law, I submit that the statement on the Berkeley website passes the Lemon test. Consequently, Caldwell has failed to state a claim for which relief may be granted.
I’m still not sure.
Consider this line from the website: Most Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings.
It seems that, depending on how you parse the line, it treads close to endorsing the view of evolution held by certain Christian and Jewish religious groups - or even endorsing the views held by certain Christian and Jewish religious groups because those groups are accepting of evolution.
Suppose the line said: All Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings.
Suppose it said: All mainstream Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings.
Suppose it said: All widely-accepted Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings.
Awww ! It’s no that bad. After you lost a few extremities to frostbite, you learn how to dress appropriately and we hardly have any wildlife attacks in urban areas nowadays 
I’m assuming the principle here is that the government is allowed to make factual statements about religion. Can there be a cause of action based on whether that factual statement is true or false? If so, does a false factual statement about religion implicate the First Amendment?
In your examples, the implication is that any religious group with a conflict with evolution are either not Christian or Jewish, not mainstream, or not widely accepted. I can see where that would be a problem (in addition to being not factually correct.) However the statement as written says nothing about the state groups in conflict with evolution.
The statement also does not directly imply the truth or falsity of evolution - only the position of the groups with respect to evolution.
If the website for a public university with a comparative relgion class says
“Most Christian groups believe in the Trinity”
would that be a violation? I would guess not.
Well, damn you, then.
First, “treads close to” does not mean “crosses the line.” Also, I think that it’s a stretch to claim that a factual statement about religion (whether the statement is true, false, or arguable) is an automatic First Amendment violation. If it were, schools in California will find themselves in a bind, as they routinely tell students, “We have no school on Yom Kippur because many of our teachers are observant Jews whose religion prohibits them from working that day, and it is prohibitively expensive to hire sufficient subs.” That includes factual statements regarding Judaism, and arguably constitutes state endorsement of religion (at least to a ten year old – wooo! day off! I love Judaism!)
Instead, the statement under challenge is closer to a factual statement about what certain unnamed and generally unknown religious groups believe. I wonder what would have happened if the website did not include the phrase “Christian and Jewish”? Or if they had substituted the phrase “Judeo-Christian” or “western”? Or, better yet, what if the phrase were “Some Christian and Jewish religious groups disagree, but some others have no conflict with the theory of evolution or other scientific findings”? Arguably more neutral, no?
In any event, I don’t see the challenged statement as being an endorsement of religion. Rather, it is a factual statement – some people who are religious find that a belief in evolution is consistent with their religious views. If anything, it is an endorsement of evolution, not religion, and courts have already held that endorsement of evolution is not endorsement of religion.
I still think that these are all statements of fact about what a religion believes; it is not government endorsement of that religion.
Really, though, I think that these statements can be analyzed under Rule 12. Whether Cal should or should not have included such a statement is irrelevant; the question is whether government can mention religion without violating the First Amendment. Not to get all slippery slope on you, but what’s the effect of a ruling that says government cannot make factual statements about religion generally without running afoul of the First Amendment?
I’m seeing some Ten Commandments displays (that have been diluted with statements regarding other religions) that would suddenly feel very, very vulnerable.
California public schools in 7th grade teach a section on various religious beliefs. When my daughter took it, it was very well done, with no preference for one over the other, and entirely factual. Would such a section be banned under the interpretation you speculate on?
But what about global warming? Won’t that melt my igloo? :dubious:
Nor am I speculating that it is. I’m just saying the point at which we analyze the factuality of the statement is not at the 12(b)(6) stage, because it requires some reference to facts outside the pleading. I agree that this ISN’T a First Amendment violation – I’m just saying we can’t kick it until we reach Rule 56 summary judgement. I’m suggesting the plaintiff HAS stated a claim upon which relief can be granted, but ultimately will fail to show facts to support that allegation.
Agreed. Here’s where we part ways:
Nope. From what I understand, the plaintiff is not challenging the truth of Cal’s assertion. This lawsuit is not about whether, in truth, certain segments of certain Jewish and Christian sects like evolution. Instead, the lawsuit argues that Cal can’t make that statement unless it also states that some religions don’t agree with evolution – i.e., unless Cal in an even-handed way presents both sides of the argument.
That doesn’t require any discovery: it’s undisputed what Cal said, and the truth of what Cal said isn’t at issue. Consequently, it is a pure legal matter: Whether a public entity violates the First Amendment when it says, “Most Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings.” You can’t get past a motion to dismiss simply because there is some factual issue there.
Although, as a practical matter, you’re correct: the judge may cover herself by converting the motion to a Rule 56 motion before granting judgment for Cal.
The Chicken Little slippery slopers think so. Their argument is that if Caldwell is successful, this will have a chilling effect on legitimate government speech. Imagine teaching the Crusades without a discussion of religion. That’s the slippery slope argument. Me, I’d love to see this go forward, just to gawk at the strange bedfellows it would create. But I’m kinda sick that way.
I don’t think that’s all there is to the suit. From here, for example:
His suit does not simply allege that the government can’t make a certain statement. He objects to the linking – the cherry-picking, if you will – of certain sites, but not others, to show that religion does not object to the teaching of evolution.
Surely we can agree that there would be some level of exposition and linking to religious websites that would be an impermissible endorsement of religion. If that’s so, then the question of whether THIS particular instance is permissible is a question of fact first.
It’s clear to me that the facts here are benign, so I don’t think the guy has a leg to stand on… but he HAS stated a claim upon which relief can be granted. He just hasn’t alleged a set of facts that support his claim.
If the plaintiff pleads facts that undercut his claim, even if he’s pled all the elements of his claim and facts to support those elements, then on a Rule 12 motion the judge can dismiss. For example: he pleads something that shows the statute has run, or pleads that the contract is governed by California law (which doesn’t provide a cause of action for him). In those cases, the judge can dismiss on Rule 12 because in light of all the facts pled, the pleader has failed to state a cause of action.
I see this as the same thing. Caldwell is complaining that certain statements made (either directly or through links) violate the First Amendment. If the judge can consider what those statements are (as opposed to a vague allegation that certain statements about religion were made), then I think that on a Rule 12 motion the claim can be dismissed. I don’t know whether the judge can consider what those statements are; if she can’t, then you’re right, we’re at Rule 56. If she can (either because they’re specifically alleged or because of the doctrine of incorporation by reference), then I think she could say, the plaintiff has failed to state a claim because these statements as a matter of law do not violate the First Amendment.
We’re basically agreeing, but I’m still arguing because I like to. I would also point out that a perfectly good pit thread, with such a promising beginning, has fizzled out into a technical discussion of civil procedure.
And who says lawyers are no fun at parties?