A Better Approach to Standing in Establishment Clause Cases

JB

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.