What's the harm? Nontaxpayer standing to challenge religious symbols.

AuthorSpencer, David
  1. CURRENT CASE LAW A. The Supreme Court's (Limited) Guidance B. Circuit Court Precedent 1. The Direct and Unwelcome Contact Test 2. The Altered Behavior Test II. THE WEAK BASIS FOR THE TESTS APPLIED BY THE COURTS OF APPEALS III. WHAT'S THE HARM? TESTING POTENTIAL INJURY-IN-FACT THEORIES OF RELIGIOUS SYMBOL PLAINTIFFS AGAINST SUPREME COURT PRECEDENT A. Offense B. Stigma C. Involuntary Exposure to Religion D. Special Burdens To Avoid Religious Symbols IV. NORMATIVE AND FUNCTIONAL JUSTIFICATION FOR DENYING NONTAXPAYER STANDING TO CHALLENGE RELIGIOUS SYMBOLS A. Protecting the Separation of Powers B. Preventing Unwarranted and Unnecessary Judicial Intrusions into the Culture Wars V. CONCLUSION The Supreme Court's religious display cases have provoked much critical commentary. (1) Yet few scholars have focused on the antecedent jurisdictional question of what kind of injury a plaintiff must show to establish nontaxpayer (2) Article III standing to challenge a governmental religious display or symbol (3)--despite a large body of circuit court case law on the issue. (4) The Supreme Court has addressed the question only obliquely, even though two sitting Justices and the late Chief Justice Rehnquist have identified it as worthy of the Court's consideration. (5)

    In most circuits, a plaintiff challenging a governmental religious symbol under the Establishment Clause need only show some variation of "direct and unwelcome contact" with the symbol to satisfy the injury-in-fact requirement of the Court's Article III standing doctrine. (6) But most circuit courts have analyzed the issue superficially, relying on the decisions of sister circuits or focusing on what can be gleaned from the Court's few passing comments on the issue. As of yet, no court or commentator has systematically evaluated the Article III standing of plaintiffs to challenge religious symbols in light of the entire corpus of Supreme Court standing precedent and the principles underlying those decisions. This Note undertakes that task and concludes that the weight of Supreme Court authority is at odds with the law in the circuit courts. Mere contact with a religious symbol, even if direct and unwelcome, produces at most psychological offense or stigmatic harm--injuries that the Court has found too abstract to give rise to standing.

    But this straightforward conclusion appears to be in tension with the Court's religious endorsement test, which remains the substantive standard in religious symbol cases. (7) Although standing and the merits are doctrinally independent, (8) because the endorsement test protects against psychological and stigmatic injuries, it is probably unrealistic to expect lower courts to deny standing on these grounds. This is especially so given the large body of circuit court precedent that permits standing in religious symbol cases. The Supreme Court should therefore intervene to resolve the substantial inconsistency between its standing cases and the numerous circuit court decisions that permit nontaxpayer standing to challenge religious symbols.

    Part I of this Note briefly sets forth the Supreme Court's limited guidance with regard to nontaxpayer standing in the religious symbol context and then summarizes the decisions of the federal courts of appeals. Part II argues that the Supreme Court precedents on which the circuit courts have relied provide a weak basis for their approaches to the question. Part III considers several possible ways of characterizing the injury alleged by religious symbol plaintiffs and evaluates each theory of injury in light of the Supreme Court's standing case law. All of the available theories of injury boil down to some version of either offense or stigmatic injury, both of which the Supreme Court has explicitly found to be insufficient to give rise to standing. Part III also addresses standing doctrine's apparent tension with the endorsement test. It argues that the Supreme Court should decide the question of nontaxpayer standing to challenge religious symbols, because even though it has emphasized that standing and the merits are distinct and unrelated inquiries, the lower courts have not ignored the substantive endorsement test standard when addressing the nontaxpayer standing question. Part IV suggests normative and functional arguments in support of the conclusion that religious symbol plaintiffs lack nontaxpayer standing to sue. Allowing standing based on the approaches of the circuit courts undermines the proper separation-of-powers limits on the judiciary's role, threatens the legitimacy of the federal courts, and saps the vitality from the political process. Part V concludes.

    1. CURRENT CASE LAW

      The elements of what the Court has termed "the irreducible constitutional minimum of standing" are familiar and well established. (9) A plaintiff must (1) have suffered an "injury-in-fact" that is (2) causally connected to the defendant's challenged action and (3) likely to be redressed by a favorable decision. (10) Only the first of these elements--the injury-in-fact--is at issue in most religious symbol cases.

      1. The Supreme Court's (Limited) Guidance

        The Supreme Court has thus far offered only limited guidance with regard to when, if ever, noneconomic injuries will support standing to sue under the Establishment Clause. The Court issued its clearest and most significant discussion of the issue in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (11)

        Valley Forge involved the federal government's gift of surplus land in Pennsylvania to a nonprofit Christian college. (12) The plaintiffs, who resided in Virginia and Maryland, (13) learned of the transfer through a news release. (14) The Supreme Court held that the plaintiffs lacked standing because they claimed nothing more than "that the Constitution has been violated ... [and] fail[ed] to identify any personal injury ... other than the psychological consequence presumably produced by observation of conduct with which one disagrees." (15) The Court accordingly devoted little of its discussion to what sort of noneconomic harm (if any) would have sufficed for standing. The only relevant suggestion appeared in a footnote, in which the Court distinguished School District of Abington Township v. Schempp (16) from Valley Forge. Valley Forge stated that the plaintiffs in Schempp had standing "because impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them." (17) Because the Court's holding in Schempp remains obscure, (18) Valley Forge is by far the best Supreme Court authority for determining nontaxpayer standing in religious symbol cases.

      2. Circuit Court Precedent

        In the nearly three decades since Valley Forge, the courts of appeals have considered the question of nontaxpayer standing to challenge religious symbols on numerous occasions. Two basic tests have emerged from their decisions. The dominant approach requires a plaintiff to show some version of direct and unwelcome contact with the challenged symbol or display. (19) A second approach requires a plaintiff to show that he altered his behavior to avoid contact with the allegedly offensive display. (20)

    2. The Direct and Unwelcome Contact Test

      In most circuits, a plaintiff can establish injury-in-fact by alleging direct exposure to an offensive governmental religious object. (21) Whether the plaintiff's contact with the object is sufficiently direct to give rise to standing depends predominantly on physical proximity. Thus, only a plaintiff who physically observes an offensive object or symbol may sue. (22) Some cases have also considered additional factors to be relevant. For instance, several cases have given weight to a plaintiff's residential proximity to the challenged object, as opposed to merely personal proximity or contact. (23) Other cases have found it significant that the plaintiff had no choice but to confront the symbol or display in the course of his employment or performance of civic obligations. (24) Still others have emphasized the frequency or regularity of the plaintiff's contact. (25) It warrants emphasis that the overall tone of the great majority of these cases suggests that none of these additional factors are necessary. Not one of them explicitly found that the absence of any individual factor would preclude standing. Rather, most courts have relied on the presence of these factors as further support for recognizing standing. (26)

    3. The Altered Behavior Test

      A number of circuit court cases have predicated standing on the plaintiff's alteration of his behavior to avoid the religious symbol or display. (27) A slight variation on this test confers standing where the plaintiff can show deprivation of his beneficial use of a public place because of the offense caused him by a religious display. (28) In no circuit, however, is a plaintiff required to prove altered behavior. The Seventh Circuit previously imposed such a requirement but since 1994 has also permitted plaintiffs to show injury under the direct and unwelcome contact standard. (29) For years it was an open question in the Ninth Circuit whether a plaintiff needed to show altered behavior or merely direct and unwelcome contact; in 2007 the Ninth Circuit held that either showing suffices. (30) Of the circuits that have addressed standing in the religious symbol context, only the Second, Third, and Eighth Circuits have left open the possibility that altered behavior is necessary to establish injury-in-fact. (31) In most circuits, therefore, a showing of altered behavior is sufficient, but not necessary, to satisfy Article III standing's injury-in-fact requirement.

  2. THE WEAK BASIS FOR THE TESTS APPLIED BY THE COURTS OF APPEALS

    Valley Forge contains the Court's clearest guidance with respect to nontaxpayer standing under the Establishment Clause, and that is probably why the circuit courts have...

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