Balkinization  

Thursday, March 01, 2007

A Better Approach to Standing in Establishment Clause Cases

JB

On Wednesday the Supreme Court heard arguments in Hein v. Freedom From Religion Foundation, a case that concerns whether taxpayers have standing to challenge executive action that they believe violates the Establishment Clause. (For more on the case and the oral argument, see the discussions at SCOTUS Blog and Jan Crawford Greenberg's Legalities.).

Because of a 1968 case, Flast v. Cohen, taxpayers, who do not generally have standing to sue over the use of their tax money-- do have standing to sue when government money is used to support a religious establishment. Chief Justice Rehnquist later limited Flast in a 1982 case called Valley Forge College v. Americans United For Separation of Church and State, where the government donated property instead of spending taxpayer money. The current case is further haggling over the details-- what happens when the executive does something out of a general appropriation for purposes not specifically earmarked by Congress. (The case involves a challenge to one of President Bush's faith based initiatives.). One group of amici would like to get rid of taxpayer standing completely and treat Establishment Clause cases like other cases where taxpayers have no standing to sue.

Frankly, I've always thought this entire line of standing cases is silly. Standing to sue should depend on the nature of the underlying substantive right. In my opinion, the Establishment Clause does not simply protect citizens from certain spending decisions (although it does do that). It protects them from certain dignitary harms caused by the government's endorsement of one religion over another, of religion in general over non-religion, or of atheism over religion. In other words, the Establishment Clause requires the government to give equal respect to its citizens with respect to religious questions, both in its symbolic activities as well as in its expenditures of money. Thus, if the Government were to erect a large sign from general appropriations stating "There is no God," this would violate the Establishment Clause because it imposes a dignitary harm on religious citizens. (Note: not everyone agrees with this view of the Establishment Clause-- some think it only protects against government coercion, for example. Justice O'Connor championed the endorsement view, which the Court later adopted, and I think she was essentially correct.).

If my substantive theory of the Establishment Clause is correct-- and it is more or less the theory that the Court currently holds-- then then any citizen of the U.S. who suffers a dignitary harm by reason of endorsement in violation of the Establishment Clause has standing to sue, and any citizen of a state who suffers dignitary harm by reason of endorsement by a state has standing to sue. A person's status as a taxpayer is irrelevant because it has nothing to do with the underlying nature of the substantive right.

The Establishment Clause is not the only clause in the Constitution that creates dignitary rights. The Titles of Nobility Clause protects citizens from the dignitary harms caused when the government bestows aristocratic titles on someone else. So if the federal government decided to make me Lord Balkin, any other citizen should have standing to sue, and I wish they would! Similarly, I have long been of the view that although the First Amendment protects various forms of racist speech by private actors, speech by the government is in a different position: the Equal Protection Clause prohibits states from making official pronouncements that one race is superior to the other. It would also prohibit states from having "colored" and "white" signs on restrooms or water fountains even if the state never required or enforced segregation of facilities by law. (Indeed, in Brown v. Board, when the states assigned pupils by race, they also sent a message of White Supremacy; this was a dignitary harm separate from the material harms caused by forcing blacks to attend inferior schools. That is, as Chuck Lawrence once put it, Brown is both a segregation case and a case of racist speech by the government.). According to this theory, any citizen who belonged to a disfavored or dispreferred race would have standing to sue if the government engaged in racist speech.

If one does not like the idea of citizen standing for dignitary harms-- and some people do not-- the proper solution, in my view, is to interpret substantive law so that these dignitary harms are not violations of the Constitution. It is not to use standing doctrine to prevent the enforcement of substantive law.

In making these comments, I fully recognize that the Supreme Court's standing doctrines do not reflect my views; instead the Justices have come up with an arbitrary, confusing, contradictory, and often unworkable set of rules that are objects of derision by many serious scholars. Judges use these doctrines, often in arbitrary and illogical ways, to decide substantive questions by indirection. (In Valley Forge, for example, Chief Justice Rehnquist's position meant that the government could violate the Establishment Clause but that nobody might have standing to sue to prevent that violation.) I do not claim that existing doctrine supports my position. I merely claim that my approach is the best solution and the one most consistent with the Constitution itself.


Comments:

Prof. Balkin:

Chief Justice Rehnquist's position meant that the government could violate the Establishment Clause but that nobody might have standing to sue to prevent that violation.

Rehnquist's view of "standing" was quite confused in Dubya v. Gore, where he (presumably) found standing to bring suit for an "equal protection" violation as long as the named plaintiff is a person named "Dubya", who happens not to even be a voter in Florida, and who has made no allegation, much less showing, of "invidious discriminatory purpose" or "intent or motive to discriminate".

I'd note that he was joined in this bizarre 'special circumstance' by way too many other justices, who would seemingly be less solicitous to a black plaintiff that had actually shown actual disparate impact but was unable to show motive.

Cheers,
 

JB--

Your approach seems very close to the approach that Justice Breyer (another JB) suggested at oral argument. Check out pages 26-27 of the transcript, where Breyer says to Clement that there would be a "real case or controversy, because people become terribly upset when they see some other religion getting the money from the State for the -- for building a church, for example, and that's why: There's a real controversy." And then he added, in response to some mockery from Justice Scalia, that getting upset "is a genuine injury if you look to the objectives of the establishment clause and possibly that kind of genuine injury is not the case when you look to objectives of various other clauses of the Constitution." So perhaps your desired outcome is not so fanciful.

And, indeed, there is something appealing about this approach. But I wonder why you think of it as a substitute for taxpayer standing. You say that a "person's status as a taxpayer is irrelevant because it has nothing to do with the underlying nature of the substantive right." Why so? After all, if (as you suggest earlier in the post) the Establishment Clause is designed -- at least in part -- to prevent the Government from spending money in aid of religious worship, then it does seem that the substantive right at stake is directly connected to one's status as a taxpayer. In other words, I would think that on your theory of how the Clause works, standing should be available *both* to taxpayers and to those who suffer dignitary harms.
 

Prof. Balkin:

Indeed, in Brown v. Board, when the states assigned pupils by race, they also sent a message of White Supremacy; this was a dignitary harm separate from the material harms caused by forcing blacks to attend inferior schools.

I'm in agreement with you on "dignitary harm". But in fairness, I would note that the plaintiffs in Brown v. Board of Ed [Brown I] made quite a bit of effort to show substantial and particular harms suffered because of the dignitary insult. In particular, they cited studies on self-esteem and such which showed lasting effects from discrimination and segregation:

The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system." 10

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. 11 Any language [347 U.S. 483, 495] in Plessy v. Ferguson contrary to this finding is rejected.


Brown v. Board of Ed., 347 U.S. 483 (1954) [Brown I]

I will agree that this research and finding may have not been necessary to the decision (and this finding was disputed at time, and is still disputed by revanchists on the right). But I think it was done in order to help garner a unanimous vote, and make the decision more unassailable at a time when the decision was far from politically popular. Richard Kluger's fine book "Simple Justice" covers a lot of the strategy of the plaintiffs in this, and the deliberations of the court in reaching the decision.

Cheers,
 

Prof. Balkin:

In making these comments, I fully recognize that the Supreme Court's standing doctrines do not reflect my views; instead the Justices have come up with an arbitrary, confusing, contradictory, and often unworkable set of rules that are objects of derision by many serious scholars.

Say "amen" to that [so to speak. ;-) ]

But then, Prof. Balkin, if we didn't have such muddles, everyone could be a lawyer, and you'd be out of a job explaining all the little nuancesof the law. It pissed me off that I couldn't write a computer progra, to figure out how a case would/should come down ... maybe why I never did very well on the tests in law school, although considered one of the more formidable and forceful advocates in class....

Cheers,
 

One of the notable parts of Clement's case at oral argument was that ending taxpayer standing isn't really important, because Establishment Clause litigants are very clever and could devise other ways of securing standing, if necessary.

In essence the argument was that dignitary harm was a valid basis for standing, but to claim dignitary harm, it has to be in your face, you have to walk by the "There is No God" billboard every day, or if you are objecting to the Marshall's cry, you have to be a regular practioner or party in the court in question, or to object to a government church, you have to set foot inside it.

This seems an odd argument for a restrictive take on standing doctrine. Why impose a doctrine that is easy to work around?
 

"Standing" permits more sitting time for the Justices, whose workloads seem to be diminishing significantly of late. In fact, "Standing" often makes judges' work easier. So if you lack "Standing", then sit down so the Justices or judges can stand and return to their chambers to sit down and do whatever they do there.

Heck, even in states that lack a "controversy" provision comparable to Article III for their judiciaries, "Standing" has somehow found its way, reducing caseloads in many states.

But then there is the "Standing" in the speech clause for "We the People" (and the press) to voice our concerns. Maybe, just maybe, speech will get the Justices to stand up - and listen.
 

Is there any case dealing with standing based upon a "dignitary harm?" The only case I'm aware of dealing with the nobility dealt with the designation of "colonels" by Kentucky, but I don't recall what happened in that case. It seems that pushing standing based upon dignitary harm will be hard, since it runs counter to the "concrete and particularized" mantra in thousands of standing cases.
 

Professor Balkin:

I think your suggested approach for standing to enforce dignitary rights such as the Establishment Clause makes eminent sense...so long as the Courts also ratchet back the substantive law on the Establishment Clause to what it was meant to be - a bar on the creation of a state church or state support for religion of that magnitude.

I won't hold my breath for either of our suggestions to become law anytime soon.
 

"Bart" DePalma tells once again what he thinks the First Amendment means:

I think your suggested approach for standing to enforce dignitary rights such as the Establishment Clause makes eminent sense...so long as the Courts also ratchet back the substantive law on the Establishment Clause to what it was meant to be - a bar on the creation of a state church or state support for religion of that magnitude.

We don't care what you thought it "was meant to be", "Bart".

And WTF are you to be making such deals, trading off jurisprudentiasl doctrine for the Bill of Rights?

Cheers,
 

Slightly OT, one of the most ironic things I've seen in religions freedom law was during the Newdow case, when the Thomas More Law Center filed a brief opposing Newdow and in favour of having the little tykes recite the Pledge of Allegiance every day.... Precious.

The Thomas More Law Center says that they're "[D]efending the religious freedom...." -- ummmm, wait for it -- ".... of Christians".

I think they're missing sumptin'....

Cheers,
 

Thus, if the Government were to erect a large sign from general appropriations...

That's not a good example, because money spent from general appropriations STILL is a spending problem. Government money is essentially fungible, so any money spent by the government is money that belongs to the taxpayers.

The non-spending Establishment Clause situation is something like the Texas Ten Commandments case, in which a private organization donated the religious marker in question. O'Connor didn't find that acceptable either, but a majority of the Court did (albeit not so much on spending considerations as on the Texas legislature's occasionally having sense enough to keep their mouths shut).
 

I find this reasoning sound overall but the Supremes take a more narrow view of standing. Likewise, the "dignity" approach really -- esp. with a bit of creativity -- can be pretty open-ended. It very well can eat up chunks of categories, as this very post suggests.

The EC was particularly concerned with funding issues. Another example might be the provision requiring open accounting of apportionations (Art. I, sec. 9), as shown by some attempts (see Secrecy News) to open aggregate intel budget info.

Thus, if we are going to have a general exception to limits on taxpayer suits, this is a sound one. Your approach is interesting but given the messiness of doctrine overall, the current policy is generally sound as well.

btw I share the comment discussing fungibility and such. This administration however is selective here. No funding of programs that even dicuss abortion. But when religion is involved, suddenly we can put things in separate little piles.
 

The Indian Constitution has a similar provision prohibiting state endorsement of religion. After reading this post I've discussed how the a similar case would be handled at http://rampalofthebailey.blogspot.com/
 

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