Religion and the Law of Church and State and the Supreme Court

By Philip B. Kurland | Go to book overview

4
THE PROBLEM OF STANDING TO SUE

The factor that frequently keeps problems of church and state from judicial scrutiny is the absence of a party with recognized standing to bring the issues before the federal courts. In each of the earlier cases discussed above where the issue of the application of the religion clauses was raised in a penal action prosecuted by the United States, the defendants clearly had the right to raise the issue by way of defense. Where the right asserted is put forth in an affirmative rather than a defensive manner, the problem of establishing the existence of justiciable controversy is far more difficult. The Court has utilized various techniques in handling the problem, but has contributed only a confusing diversity rather than clear precedent. The Pierce and Cochran cases are examples of the inexact nature of the Court's solutions. Two other cases are particularly worthy of comment in the context of the standing problem, a problem that will be found recurrent in the cases to be discussed in later sections of this paper.

1. The Providence Hospital Case . One way to secure a federal judicial forum, as evidence by Cochran, is for the Court to ignore the problem of the presence of a plaintiff with standing to maintain the action. This is exactly what occurred in Bradfield v. Roberts,68 as well. In Bradfield, the plaintiff asserted his rights as a taxpayer of the United States and a resident of the District of Columbia. He sued to enjoin expenditure of federal moneys on the ground that such outlay would violate the separation provision. It has since become abundantly clear that the plaintiff had no authority to raise the question as a taxpayer of the national government.69 It was more doubtful then. But the Court, in a unanimous opinion by Mr. Justice Peckham, passed quickly over the issue of standing:

Passing the various objections made to the maintenance of this suit on account of an alleged defect of parties, and also in regard to the character in which the complainant sues, merely that of a citizen and taxpayer of

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Religion and the Law of Church and State and the Supreme Court
Table of contents

Table of contents

  • Title Page 3
  • Preface 7
  • Contents 11
  • Part One - A Doctrine In Search of Authority 13
  • Introduction 16
  • Part Two - Authorities In Search of a Doctrine 19
  • 2 - The Early Mormon Cases 21
  • 3 - The Apocrypha 26
  • 4 - The Problem Of Standing to Sue 32
  • 5 - "Patriotism is Not Enough" -- or is It? 37
  • 7 - The Trial of "Saint Germain"' 75
  • 8 - The School Bus Case: The Precedent of Byron's Julia 80
  • 9 - Released Time: The Precedent of Julia Again 86
  • 10 - Of Czar and Commissar 91
  • 11 - Never on Sunday 97
  • 12 - The Notary's Oath 107
  • Part Three- Conclusion 109
  • 13 - Conclusion 111
  • Notes 113
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