A local couple’s legal claim that a U.C. Berkeley Web site on evolution pushes a religious viewpoint – in violation of the separation of church and state – cannot go forward, a federal appeals court has affirmed.

The 9th U.S. Circuit Court of Appeals upheld earlier this month a lower court’s 2006 dismissal of the case, filed by Granite Bay resident Larry Caldwell on behalf of his wife, Jeanne Caldwell.

In an opinion, Judge Pamela A. Rymer agreed with the lower judge’s finding that the plaintiffs failed to show any evidence Jeanne Caldwell was harmed by the Web site, “Understanding Evolution for Teachers.”

The site, which was partially funded by the National Science Foundation, included a page titled “Misconception: ‘Evolution and Religion are Incompatible.’” The page said, in part, that many religious groups “have no conflict with the theory of evolution or other scientific findings,” and also linked to statements from religious organizations to that effect.

The lawsuit claimed that amounted to an endorsement of certain religious viewpoints, and that it tried to proselytize those viewpoints to public school students, violating the Establishment Clause of the Constitution. The suit asked for an injunction against the Web site and declaration the site was unconstitutional.

Caldwell claimed she was “offended” by the Web site and made to feel like an “outsider,” according to the original complaint, filed in U.S. District Court.

But the court found the Caldwells could not sue because Jeanne Caldwell’s personal offense at the site’s message was not enough to constitute an injury.

“Accordingly, we believe there is too slight a connection between Caldwell’s generalized grievance, and the government conduct about which she complains, to sustain her standing to proceed,” Judge Rymer wrote in the 14-page opinion.

Kevin Snider, chief counsel for the Pacific Justice Institute, a conservative legal group that was part of the Caldwells’ legal team, said in an interview this week an appeal, either to an 11-judge panel or the Supreme Court, is still possible.

“We’re cogitating over that now,” Snider said. “We have a number of days to make a decision.”

He said while courts have a long history of finding Establishment Clause violations in the physical public sphere, such as biblical messages displayed in courtrooms, they have yet to fully reckon with alleged violations of church and state in cyberspace.

“The real issue is whether the Internet is going to be an Establishment Clause-free zone,” he said. “In other words, can you have no Establishment Clause violation or separation of church and state issue if it happens in virtual space, or does it have to happen in flesh and blood?”

The dismissal comes little over a year after Larry Caldwell lost his own legal battle with the Roseville Joint Union High School District also over issues connected to evolutionary theory.

That complaint, filed in 2005, centered on claims that the district violated Caldwell’s constitutional rights in the year he attempted to introduce his controversial Quality Science Education Policy into the curriculum.

The proposed program included information contradictory to evolution.

A U.S. District Court judge dismissed the suit in September 2007.vv