Standing Under the Religion Clauses

Establishment Clause Standing. To establish standing under Article III, a plaintiff must establish (1) that he has personally suffered some actual or threatened injury as the result of the challenged conduct, (2) that the injury to the plaintiff can be traced to the challenged conduct, and (3) that the injury is likely to be redressed by a decision in the plaintiff's favor. This requirement is part of the case or controversy requirement of  Article III of the Constitution. In addition to the Article III constitutional requirements for standing, the Supreme Court has also developed prudential limits on who may have federal court standing. If a case is brought in state court, the Article III standing doctrine does not apply and each state can design its own rules for state court standing. However, the situation changes if a case that is orignally brought in a state court is reviewed by the United States Supreme Court. For the Supreme Court to review a case on the merits, the case must satisfy the Article III justiciability requirements including standing.

I.  Economic Injury

A.  Taxpayer standing

(1) In Flast v. Cohen, the Supreme Court held that federal taxpayer status is a sufficient basis for standing to sue in federal court to challenge taxing and spending programs enacted by Congress as violative of the Establishment Clause. In this respect the Establishment Clause is unique because ordinarily taxpayer status, under the decision in Frothingham v. Mellon, is an insufficient basis to challenge Congressional actions as violative of provisions in the Constitution. This different treatment of Establishment Clause challenges is because the Establishment Clause is viewed as a specific limitation on the federal power to tax and spend thereby satisfying the 2 part test of Flast v. Cohen. Under that test: (1) the taxpayer must establish a logical link between that status and the type of Congressional enactment attacked; and (2) the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Applying that test, the Court determined that spending programs enacted under Congress's Article I, Section 8 power to spend for the general welfare satisfy the requirement of a logical link between taxpayer status and the type of Congressional enactment attacked. It also found that there is a nexus between taxpayer status and a constitutional challenge based on the Establishment Clause. By contrast to Flast, the Flast test was not satisfied in the Valley Forge Christian College case because (1) the case did not involve a challenge to a Congressional exercise of the taxing and spending power under Article I, Section 8, but was instead a challenge to executive branch action; and (2) the Congressional enactment that authorized the property donation was an exercise of power under the Property Clause of Article IV, Section 3 rather than an exercise of the taxing and spending power under Article I, Section 8.  In addition, the Flast test was not satisfied in Hein v. Freedom From Religion Foundation, Inc. because Congress did not authorize the expenditure of funds specifically for the challenged activity. Instead the challenged activity was by the executive branch using general executive branch appropriations. Moreover, the Court refused to find the Flast exception applicable to Arizona's tax credit for taxpayer contributions to organizations that provided financial support to religious schools. The Court held in Arizona Christian School Tuition Organization v. Winn that taxpayer standing under Flast was only applicable to  challenging governmental expenditures. Tax credits did not fall into this category because the taxpayer rather than the government was contributing the money even though the government was indirectly funding the contribution by providing a tax credit. These narrow interpretations of Flast indictate that the Court is unwilling to expand Flast beyond situations that are exactly parallel to the facts in that case.

(2) Despite the decision in Arizona Christian School Tuition Organization v. Winn, state taxpayer status serves as a basis for standing for a federal court challenge to state expenditures of funds as violative of the Establishment Clause as long as the program being challenged is a bona fide spending program.

(3) Municipal taxpayer status serves as a basis for standing for a federal court challenge to a municipal expenditure on Establishment Clause grounds because of the direct relationship that exists between the city and its residents. The only requirements are that money must have been spent by the municipality to fund the asserted unconstitutional activity and the individual who sues must be a taxpayer of the municipality whose actions are being challenged. Disputes over whether municipal taxpaper status is sufficient for standing can arise in situations where the amount of money spent is only a de minimus amount.

B. Other economic injuries as a basis for standing

Other economic injuries such as to competitors or others who suffer economic losses as the result of government conduct that grants economic benefits in violation of the Establishment Clause will also serve as a basis for standing.   

II.  Noneconomic injury

In addition to economic injuries, standing in Establishment Clause cases can be based on a noneconomic injury, but not on a solely psychological injury (like being offended) such as the kind of injury the Court found inadequate in Valley Forge. To serve as the basis for standing, the noneconomic injury can be:

A.  A change in behavior as a result of the asserted Establishment Clause violation such as a decision to refrain from an activity that the plaintiff has previously engaged in, or some other alteration in the challenger’s lifestyle or activities. An example of a change in behavior could be a change in the route traveled in order to avoid a religious symbol on public property.

B.   A decision to give up the use and enjoyment of government property such as a state park.  This was the basis for standing in ACLU v. Raban County Chamber of Commerce where the presence of the cross interfered with the plaintiff’s willingness to camp on state property. This form of standing may also satisfy the requirement of a change in behavior. However, since the plaintiffs in Raban County had never camped in the particular state park at issue prior to the installation of the cross, it is more easily classified as a decision to forego use of the park rather than a change from prior behavior.  

C.  Significant exposure or direct contact with offensive conduct can be the basis of standing. A change in behavior is not always viewed as necessary to establish a noneconomic injury.  For example, in Van Orden v. Perry, the Texas Ten Commandments case, Van Orden walked by the Ten Commandments monument when he used the law library in the Supreme Court Building. Even though he continued to use the library on a frequent basis, despite his objections to the monument, he satisfied the standing requirement. In this circumstance, standing is created because the government has placed the challenger in the position where the challenger either has to refrain from an activity the challenger would otherwise engage in (camping in a state park or walking down a pathway to enter a government building) to avoid an objectionable relgious symbol or activity or engage in the activity and be forced to be exposed to a religious symbol or activity that the challenger finds objectionable. Noneconomic injury is often the basis for standing in cases where public school pupils are challenging a religious practice sponsored by the school they attend such as Bible reading in Schempp or graduation prayer and the students endure the discomfort of being present for unwelcome religious activity.      

Free Exercise Standing - In Free Exercise challenges, standing is based on the fact that the challenger has had a substantial burden (either direct or indirect) placed on his or her ability to engage in a religious practice by the government. The burden could be that continuing to engage in the religious practice could result in the loss of government benefits, the risk of criminal or civil penalties, or some other substantial burden. Free Exercise standing cannot be based on a general status such as taxpayer status. Instead, challengers must show their personal rights have been interfered with because their religious freedom has been substantially burdened by the government's conduct.