Stigmatic Harm and Standing

• Author: Thomas Healy
• Position: Associate Professor, Seton Hall School of Law
• Pages: 419-488

Associate Professor, Seton Hall School of Law. B.A., The University of North Carolina; J.D., Columbia University School of Law. Thanks to Michelle Adams, Baher Azmy, Jake Barnes, Carl Coleman, Rachel Godsil, Tristin Green, Edward Hartnett, Andrea McDowell, Frank Pasquale, James Pfander, Edward Purcell, Charles Sullivan, and, especially, Arlene Chow. Thanks also to the participants at the Seton Hall Scholarship Retreat, to Sarah Farley and Matthew Schueller for excellent research assistance, and to the editors of the Iowa Law Review. The ideas in this Article were presented at the poster session of the 2006 Association of American Law Schools Annual Meeting.

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Introduction

Under the Supreme Court's well-established standing doctrine, a plaintiff has standing only if he has suffered an "injury in fact" that is fairly traceable to the defendant's conduct and is likely to be redressed by a decision in his favor.¹ The injury must be concrete, not abstract, and actual or imminent, not conjectural or hypothetical.² Although most plaintiffs assert economic injuries, standing also can be based on non-economic injuries.³ For instance, the Court has held that injuries to aesthetic interests-such as the desire to enjoy a particular forest or park-are sufficient to support standing.⁴ But there is one non-economic injury the Court has been reluctant to recognize as a basis for standing. In Allen v. Wright, the Court denied standing to African Americans who alleged that the government's failure to enforce antidiscrimination laws against private schools stigmatized them.⁵ Although the Court acknowledged that stigmatic harm is serious, it said such harm is too abstract to serve as a basis for standing.⁶ To rule otherwise would "transform the federal courts into 'no more than a vehicle for the vindication of the value interests of concerned bystanders.'"⁷ "Constitutional limits on the role of the federal courts," the Court added, "preclude such a transformation."⁸

The Court's holding in Allen has substantially limited the ability of minority groups to challenge government action that reinforces private discrimination. It precluded the plaintiffs in Allen from seeking the enforcement of antidiscrimination laws against segregated schools.⁹ It has barred lawsuits by gays and lesbians seeking to overturn criminal sodomy laws.¹⁰ And it has blocked efforts by African Americans to deny licenses to radio stations accused of racial discrimination.¹¹

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Lawyers and legal scholars seem largely to have accepted this state of affairs. Although several writers have criticized Allen on other grounds,¹² in the two decades since the decision no one has seriously examined the Court's conclusion that stigmatic harm is inadequate to support standing.¹³ And given the considerable time that has passed since Allen was decided, it might seem too late to revisit the ruling now.

But there are two important reasons to reconsider Allen. First, despite the Court's holding, it has never entirely dismissed stigmatic harm as a basis for standing. In Allen itself, the Court stated that stigmatic harm would support standing for plaintiffs who were personally denied equal treatment.¹⁴ And in the years since Allen, the Court has invoked stigmatic harm, either explicitly or implicitly, as a basis for standing in electoral districting¹⁵ and Establishment Clause cases.¹⁶

Second, and perhaps more intriguingly, is the Court's recent opinion in Lawrence v. Texas.¹⁷ In Lawrence, two men challenged their conviction under a Texas law that prohibited sodomy between same-sex couples but not between opposite-sex couples.¹⁸ Although the Court could have invalidated the law on equal protection grounds, it instead struck down the law as a violation of substantive due process,¹⁹ thereby overturning its decision seventeen years earlier in Bowers v. Hardwick.²⁰ In justifying this approach, the Court explained that the law invited discrimination against homosexuals "both in the public and in the private spheres."²¹ And because a decision based on equal protection would not preclude Texas from criminalizing sodomy between all couples, the law's "stigma might remain even if it were not enforceable as drawn."²² Therefore, the Court concluded, it wasPage 421 required to reach the due process issue and revisit Bowers: "Its continuance as precedent demeans the lives of homosexual persons."²³

The Court's approach in Lawrence seems sharply at odds with Allen. Had the Court struck down the Texas law on equal protection grounds, the defendants' convictions would have been reversed and their interest in the case would have ended. It was thus unnecessary to reach the due process claim. But the Court apparently concluded that the defendants suffered two harms. One was the conviction and accompanying fine.²⁴ The second was the stigma the Texas law imposed on gays and lesbians.²⁵ A decision on equal protection grounds would redress the first harm, but only a decision on due process grounds would redress the second. And because the Court felt obligated to eliminate this stigmatic harm, it struck down the law as a violation of due process.²⁶ Thus, whereas Allen held that stigmatic harm was insufficient to justify the exercise of judicial power, Lawrence relied on precisely such harm to justify a decision that was not necessary to resolve the case.

Of course, Lawrence is not technically a standing decision, and I am not suggesting that it formally overrules Allen. But Lawrence does suggest that stigmatic harm is a judicially cognizable injury. And to the extent that Allen rested on a contrary conclusion, Lawrence raises the question whether stigmatic harm should be sufficient for standing.

This Article attempts to answer that question. Part I begins by briefly describing the history of standing doctrine and the evolution of the injury-in-fact requirement. It then discusses the Court's decision in Allen and shows how, despite that decision, the Court has not completely ruled out standing for stigmatic harm. Finally, Part I provides a more detailed analysis of Lawrence and the implications of the Court's holding for Allen.

After setting forth this descriptive account, the Article turns to the normative argument, which is that stigmatic harm should be sufficient for standing. Before doing so, however, Part II considers a preliminary issue, which is whether it makes sense to argue in the abstract about what injuries are adequate for standing. Some scholars have argued that the injury-in-fact requirement is incoherent and that standing should instead turn on whether the substantive law at issue in a case gives the plaintiff a cause of action.²⁷ If these scholars are right, one might think it pointless to argue that stigmatic harm-or any type of injury-is sufficient for standing in general. Instead, one should ask whether the substantive law in a given case was intended to protect against stigmatic harm. But as Part II explains, the Supreme CourtPage 422 has not adopted this theory of standing and shows no intention of abandoning the injury-in-fact requirement. Furthermore, even under this theory there would be good reason to explore the nature of stigmatic harm, since courts would still have to make subjective judgments about what interests are protected by various legal provisions.

Part III proceeds with the normative claim. Although the Court has often invoked stigmatic harm, it has never explored the nature of stigma or what it means to be stigmatized.²⁸ This Part therefore draws on the work of Erving Goffman and other social scientists to provide a fuller understanding of what stigma is, how it is created and reinforced by law, and how it affects those who are stigmatized. In brief, stigma is a mark of disgrace imposed on individuals who possess a characteristic or trait that society views as deeply discrediting.²⁹ This mark spoils the social identity of its bearer and reduces him "from a whole and usual person to a tainted, discounted one."³⁰ Stigma invites discrimination and prejudice against the stigmatized, poses threats to their self-esteem, and creates self-doubt that can diminish their abilities, thus confirming the very stereotypes that help generate stigma in the first place.³¹ These injuries are as significant and concrete as other injuries the Court has recognized. Moreover, these harms distinguish the stigmatized individual from a concerned bystander who merely seeks to vindicate value interests. For these reasons, the Court should formally recognize stigmatic harm as a sufficient injury for standing.

Part IV considers several objections, including concerns about causation and redressability, the difficulty of proving stigmatic harm, and the possibility of a flood of lawsuits. While these objections are not insignificant, Part IV explains why none of them justify rejecting stigmatic harm as a basis for standing.

Finally, Part V provides examples where stigmatic harm could be relied upon to challenge government action. For instance, if a...