Academic journal article Harvard Law Review

Nontaxpayer Standing, Religious Favoritism, and the Distribution of Government Benefits: The Outer Bounds of the Endorsement Test

Academic journal article Harvard Law Review

Nontaxpayer Standing, Religious Favoritism, and the Distribution of Government Benefits: The Outer Bounds of the Endorsement Test

Article excerpt

I. INTRODUCTION

The requirement that a plaintiff show injury-in-fact to have standing in federal court has proved "particularly elusive" in the Establishment Clause context. (1) This is because "violation of the clause does not require coercion on specific individuals" (2) or other particularized harm, but rather occurs whenever government action endorses or favors one religion over another (or favors religion generally). (3) Unlike most litigated injuries, the harm that flows from an Establishment Clause violation is "inherently generalized": (4) the damage, broadly speaking, accrues to society as a whole rather than to individuals as such (although certain individuals may feel especially slighted by a given violation). (5)

Courts have laid out a fairly broad injury-in-fact rule for cases involving religious displays and similar alleged Establishment Clause violations. In brief, a plaintiff must have suffered a "personal" injury as a consequence of the claimed violation. (6) Such injury may arise where a plaintiff has had direct contact with a religious display or altered her behavior in order to avoid the display. (7) It is not clear, however, how far this rule extends. Certainly it covers religious displays on government property, as well as school prayers and government proclamations on religious subjects. (8) Some litigants, however, have sought to extend the rule to less frequent subjects of Establishment Clause litigation, such as the denial of government benefits. (9)

One recent D.C. Circuit case, In re Navy Chaplaincy, (10) involved a particularly interesting twist on injury-in-fact in the Establishment Clause context. The plaintiffs, a group of Protestant Navy chaplains, claimed the Navy was operating its retirement system in a way that benefited Catholic over non-Catholic chaplains. (11) Significantly, the plaintiffs conceded that they had not themselves suffered discrimination on account of their religion. (12) Instead, they advanced the novel claim that they had suffered injury-in-fact based on their exposure to the "'message' of religious preference" the Catholic favoritism communicated. (13) Although the court ultimately concluded the plaintiffs lacked standing, the plaintiffs' theory did win the vote of Judge Rogers, who dissented on the ground that the Navy Chaplaincy's Catholic bias conveyed a message of favoritism that "cause[d] [the plaintiffs] psychological harm ... that is cognizable under the Establishment Clause." (14)

The Navy Chaplaincy plaintiffs' theory of standing is significant because it would permit plaintiffs to challenge government religious discrimination against other people. Normally, under Allen v. Wright, (15) when the government engages in discriminatory conduct, the only parties with standing to challenge that conduct are those who have suffered actual discrimination as a result. (16) The Navy Chaplaincy plaintiffs' theory avoids this problem--at least in the Establishment Clause context--by characterizing religious favoritism in the distribution of government benefits as a "message" endorsing religion. Because standing under the Establishment Clause can arise solely on account of one's "contact" with a message endorsing religion, (17) if religious favoritism in the distribution of government benefits can be said to communicate a message endorsing religion, then a plaintiff would be able to assert standing to challenge such favoritism so long as she can show exposure to the message. Suffering actual discrimination would no longer be required; simple knowledge of the favoritism--that is, "exposure" to the message the favoritism conveys--would suffice.

Clearly, accepting the Navy Chaplaincy plaintiffs' theory would have major consequences for Establishment Clause standing doctrine. For this reason, the theory warrants close examination. This Note investigates the analytical underpinnings of the effort to characterize religious favoritism in the distribution of government benefits as a "message" endorsing religion. …

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