Standing to Challenge Laws that Allegedly Endorse or Disapprove of Religion

I blogged yesterday about the Oklahoma anti-sharia amendment case, and suggested that the plaintiff may not have the legally sufficient standing to challenge the law. Among other things, I wrote:

1. The plaintiff argues that the amendment is unconstitutional because it impermissibly expresses governmental hostility to Islam, and provides for discrimination against Muslims. But the mere existence of the law does not, I think, amount to a constitutionally sufficient injury on which a lawsuit can be founded. (That’s the legal requirement of “standing.”)

It’s true that the Supreme Court has sometimes allowed standing in Establishment Clause cases based on symbolic injuries. But the Court has never allowed standing simply based on the existence of a law that allegedly conveys an impermissible message of endorsement, and lower courts have not accepted such claims. See Newdow v. Lefevre (9th Cir. 2010):

Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes “In God We Trust” is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the “unwelcome direct contact” with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an “abstract stigmatic injury” resulting from such outsider status is insufficient to confer standing.

People can have standing to object to the placement of religious symbols in particular places, when the objectors have “frequent regular contact” with the symbols (in the sense of often being around where the symbols are visible). But the presence of words in a law — even words that express endorsement or disapproval of religion — does not yield standing.

Some comments reminded me of a recent case that took the opposite view from what I expressed, so I did some more research. Here’s what I found.

Generally speaking, courts have indeed held that a person may not challenge a state law merely because its existence endorses or disapproves of religion. (Recall that there’s considerable Supreme Court precedent stating — whether rightly or wrongly — that government action that endorses or disapproves of religion generally violates the Establishment Clause. That’s the substantive standard, and the question is whether a particular challenger indeed is in a legally sufficient position to sue for an alleged violation of this standard.) If the law has been applied to the person, then he can sue; likewise if there’s a sufficiently imminent threat of application. Also, the objector can sue if the government creates some display — a creche, a monument, a city seal on government vehicles, and the like — that the objector will routinely see. But there mere existence of a law out there on the books does not suffice. Thus,

  1. Flora v. White (8th Cir. 1982) held that an atheist lacked standing to challenge the mere existence of a law that disqualified atheists from being officeholders or witnesses. The court concluded that the challenger didn’t face sufficient risk of impending tangible harm (e.g., in not being able to testify in some future action). And it also rejected the argument that the very existence of the law itself created a psychological harm:

    Both appellants also allege that, as atheists, they have suffered adverse psychological consequences as a result of the continued presence of this section in the Arkansas Constitution. The Supreme Court, however, recently held that this type of general psychological impact does not constitute the requisite injury in fact. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The plaintiffs in Valley Forge, like appellants herein, failed

    to identify any personal injury suffered … as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that [the plaintiffs] are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant’s interest or the fervor of his [or her] advocacy. “[T]hat concrete adverseness which sharpens the presentation of issues” is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.

    102 S.Ct. at 765-66 (emphasis in original, citations and footnote omitted); see also id. at 766 n.22 (rejecting a “spiritual stake” in the outcome as sufficient to confer standing).

  2. Freedom from Religion Found., Inc. v. Zielke (7th Cir. 1988) likewise held — in a Ten Commandments monument case — that objectors’ allegations “that they have suffered ‘a rebuke to [their] religious beliefs respecting religion by virtue of being subjected to a governmental endorsement of unequivocally religious precepts and confusions'” are “exactly the type of psychological harm that the Supreme Court has held cannot confer standing on an aggrieved party” (citing Valley Forge).
  3. Washegesic v. Bloomingdale Public Schools (6th Cir. 1994) held that plaintiffs continued to have standing to object to a portrait of Jesus in a public school, but only because they were likely to return to the school and see the portrait, and thus have “‘unwelcome’ direct contact with the offensive object,” and not just “psychological harm alone” stemming from the knowledge that the painting exists.
  4. Several cases in the Tenth Circuit, which are binding on the Oklahoma federal district court is located, seem to take the same view; all found standing, but because of the presence of “personal contact with a state-sponsored image.” See O’Connor v. Washburn Univ. (10th Cir. 2005) (professor and student had standing to challenge allegedly anti-Catholic sculpture when the “claim[ed] they were constantly exposed to its presence and were forced to alter their schedules and routes across campus to avoid it” because of its “prominent location on campus”); Green v. Haskell County Board of Comm’rs (10th Cir. 2009) (citizen had standing because “whenever he visits the courthouse square for [various] purpose[s], he cannot avoid the [Ten Commandments] Monument”); American Atheists, Inc. v. Duncan (10th Cir. 2010) (citizens had standing because they alleged they had “direct personal and unwelcome contact with the crosses” that were used as roadside memorials).
  5. Caldwell v. Caldwell (9th Cir. 2008) held that plaintiff lacked standing to challenge a web site related to evolution that was maintained by the University of California, which in the plaintiff’s view disapproved of her religious beliefs. The court concluded that Caldwell did not have “unwelcome direct contact with an allegedly offensive religious or anti-religious symbol” — at least in any way different from the contact that any member of the public could have by visiting the site. Her position was “not sufficiently differentiated and direct to confer standing on her to challenge the University of California’s treatment of religious and anti-religious views on evolution.” “[H]er connection to the University of California website is not similar to the relationship in Schempp [one of the Supreme Court’s school prayer cases] between parents whose children are directly exposed to unwelcome religious exercises in the classroom and the school district.
  6. Likewise, in Doe v. Tangipahoa Parish School Bd. (5th Cir. 2007), the court held that standing to challenge religious invocations at school board meetings “has not previously been based solely on injury arising from mere abstract knowledge that invocations were said. The question is whether there is proof in the record that Doe or his sons were exposed to, and may thus claim to have been injured by, invocations given at any Tangipahoa Parish School Board meeting.” In the absence of such direct exposure to the invocations — beyond just the knowledge that the invocations are authorized and taking place — plaintiffs did not have standing.
  7. And, as I mentioned in the original post, Newdow v. Rio Linda Union School Dist. (9th Cir. 2010) took the same view.
  8. Finally, the Supreme Court’s decision in Valley Forge Christian College v. Americans United for Separation of Church & State (1982) likewise points against standing. In Valley Forge, Americans United challenged the federal government’s conveyance of property to Valley Forge Christian College. The case is not squarely on point, because it involved a claim premised on unconstitutional use of taxpayer money, rather than unconstitutional conveyance of a message by the government. Still, the Court did discuss the “psychological injury” argument, and rejected it. “[Challengers’] fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms.”

Nonetheless, as some commenters noted, the recent Ninth Circuit en banc 6-to-5 decision in Catholic League for Religious & Civil Rights v. City & County of San Francisco (9th Cir. 2010) held that objectors did have standing to challenge a San Francisco Board of Supervisors resolution that condemned certain actions by the Catholic Church. The en banc majority seemed to cast some doubt on the the Ninth Circuit panel opinions I quoted above. But it didn’t expressly overrule them, or expressly disavow the other circuits’ views. Rather, it seems to have taken the view that standing should be more easily found when an action involves an (1) unambiguous (2) condemnation of a religion (3) “in one’s own community” (though it also suggested that endorsements of religion and condemnation of religion should be treated the same) (paragraph breaks added):

Judge Graber [who wrote the 5-judge dissent on the standing issue] cites many, many standing cases and faults us for not discussing all of them to the same extent. The reason why all need not be patiently explicated is that not a single one of Judge Graber’s cited cases involves a government condemnation of a particular church or religion. The attempt to tease out of the rhetoric explaining the holdings in other, quite different, factual circumstances fails because the language in every case explained a different result.

True, there are so many Establishment Clause standing cases that the language (as opposed to the holdings) in some furnishes ammunition for Judge Graber’s view. Newdow v. LeFevre upholds standing to challenge federal statutes requiring “In God We Trust” on currency, but not the federal statute making “In God We Trust” the national motto. 598 F.3d 638, 642 (9th Cir. 2010). Newdow v. Rio Linda Union School District has dicta that a parent and child lacked standing to challenge the federal statute adding “under God” to the pledge of allegiance, but holds that they had standing to challenge the California law requiring the pledge’s recitation in the schools even though no child was required to recite it. 597 F.3d 1007, 1016 (9th Cir. 2010). Judge Graber’s stretch from federal statutes regarding traditional patriotic formulas that include vague and general religiosity, to a local ordinance condemning the church and religious views of some of the municipality’s residents, takes the explanatory language of these cases too far.

Additionally, Judge Graber argues that a one-page Eighth Circuit per curiam opinion, Flora v. White, is “indistinguishable” from this case. 692 F.2d 53 (8th Cir. 1982) (per curiam). Hardly. The Eighth Circuit held that the plaintiffs lacked standing to challenge a provision in the Arkansas Constitution making atheists incapable of holding public office or to testify as a witness, where the plaintiffs had no plans to do either. Id. at 54. Their being offended because they were atheists was analogized to the plaintiffs offended but not affected in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982). See Flora, 692 F.2d at 54.

Unlike either of these cases, the plaintiffs here are not suing on the mere principle of disagreeing with San Francisco, but because of that city’s direct attack and disparagement of their religion.

The Catholic League analysis would support the court’s conclusion that the Oklahoma Muslim plaintiff had standing to challenge the constitutional provision banning the consideration of Sharia law, on the grounds that it too involves a “[state]’s direct attack and disparagement of [his] religion.”

Nonetheless, it seems to me that the weight of circuit opinion, and the implications of the Supreme Court’s Valley Forge case, point against standing; and the Catholic League majority was mistaken in trying to distinguish those cases on grounds of the supposed specificity and localism of the condemnation of religion (since those grounds, even if relevant to the substantive question, aren’t relevant to the standing issue). Catholic League is of course binding in the Ninth Circuit, but I suspect that the Tenth Circuit would not follow the view of the Catholic League majority. The suspicion is not a certainty, partly because the Tenth Circuit cases I cite found standing by stressing the need for direct contact, rather than rejecting standing because of the absence of direct contact — it’s possible that the Tenth Circuit would conclude that direct contact is sufficient but not necessary for standing, or adopt the distinction urged by the Catholic League majority. Still, I would think that in the Tenth Circuit the likely result would be no standing in the Oklahoma case.