What's the Harm? Nontaxpayer Standing to Challenge Religious Symbols

By Spencer, David | Harvard Journal of Law & Public Policy, Summer 2011 | Go to article overview

What's the Harm? Nontaxpayer Standing to Challenge Religious Symbols


Spencer, David, Harvard Journal of Law & Public Policy


I.   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.

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