The Establishment Clause and Standing to Sue

I’ve written elsewhere (and will have more to say soon, since I’ve got a lecture deadline) about the Supreme Court’s quite breathtaking (in a good way) decision in the Arizona tuition tax credit case. Hard on the heels of that decision comes an appellate decision against one of my least favorite church-state litigators, the Freedom From Religion Foundation , which (a 7th Circuit panel held) did not have the standing to sue in seeking an injunction against the President’s declaration of a National Day of Prayer. As Judge Frank Easterbrook, writing for the panel, wryly observes:

Section 119 imposes duties on the President alone. It does not require any private person to do anything—or for that matter to take any action in response to whatever the President proclaims. If anyone suffers injury, therefore, that person is the President, who is not complaining.

I hope the FFRF appeals and the Supreme Court takes the case, because Judge Easterbrook raises some penetrating questions about the line of reasoning first articulated by Justice Sandra Day O’Connor regarding the ways in which government sponsorship of some religious display—the proverbial Christmas creche—constitutes an “endorsement” of religion and hence a violation of the establishment clause. Once again, Judge Easterbrook:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their principles. It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome. Here again is the proclamation’s only sentence that explicitly requests citizens to pray: “I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths or consciences , for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, grace, and protection as we meet the challenges before us. But let us suppose that plaintiffs nonetheless feel slighted. Still, hurt feelings differ from legal injury. The “value interests of concerned bystanders” . . . do not support standing to sue.

The arguments in this and the tuition tax credit case could lead to a wholesale revision of some unfortunate First Amendment jurisprudence dating back some thirty years at least. It’s high time.

One last point: if this happens, we would have the Obama Administration to thank for it. In both of these cases, the Obama Administration forcefully made arguments about the plaintiffs’ lack of standing.

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