What's the "harm" in establishments of religion?

Any day now, the Justices will announce their decision in a case called Hein v. Freedom from Religion Foundation, Inc.  This case presents a question about "taxpayer standing" to challenge the actions of Executive Branch officials on Establishment Clause grounds. 

In March, Professor Sunstein published an op-ed in the Boston Globe ("Church, State, and Taxpayers") defending taxpayer standing in Establishment Clause cases, noting that "[t]he Constitution bans the establishment of a religion by government, and a major point of this ban is to ensure that the power to tax and spend would not be used to favor one religion over another or to support religion in general."  At another blog, I wondered if one could make (pretty much) the same argument with respect to other provisions or structural features of the Constitution.  (That is, if we need taxpayer standing to vindicate the point of the Establishment Clause, then why don't we need it, and why don't we have it, to vindicate the point of, say, "the separation of powers" or "the enumerated-powers principle"?)

I'm thinking now, though, about a different (though related) question:  What, exactly, is the harm or (in "standing" terms) the "injury" that we think an "establishment of religion" works or imposes?

Now, to ask this question is not to contend, or even to suggest, that "establishment[s] of religion" are desirable.  Properly understood, I think they are not.  Still, what is the Establishment Clause "harm" that we want courts to redress and prevent?

Sometimes, the claim is expenditures of public funds in support of religion burden the consciences of -- and therefore injure -- taxpayers who object to such expenditures.  In my view, though, this claim is not all that persuasive.  (After all, taxpayers object, in good conscience, to all kinds of public expenditures, and for all kinds of reasons.)

Professor Jack Balkin's argument is different.  He writes:

In my opinion, the Establishment Clause does not simply protect citizens from certain spending decisions (although it does do that). It protects them from certain dignitary harms caused by the government's endorsement of one religion over another, of religion in general over non-religion, or of atheism over religion. In other words, the Establishment Clause requires the government to give equal respect to its citizens with respect to religious questions, both in its symbolic activities as well as in its expenditures of money. . . .

If my substantive theory of the Establishment Clause is correct-- and it is more or less the theory that the Court currently holds-- then then any citizen of the U.S. who suffers a dignitary harm by reason of endorsement in violation of the Establishment Clause has standing to sue, and any citizen of a state who suffers dignitary harm by reason of endorsement by a state has standing to sue. A person's status as a taxpayer is irrelevant because it has nothing to do with the underlying nature of the substantive right.

I think Prof. Balkin is probably right about the Court's theory (at least, about the theory of the Court whose decisions in Religion Clauses cases until recently depended on Justice O'Connor's vote).  So, what should we think of the theory?  What counts as a "dignitary" harm?  Is it really true that an endorsement (or even a United Kingdom-style "establishment") of religion works such a harm?  Can it realistically be the aim of courts interpreting and enforcing the Establishment Clause to identify and prohibit the infliction of such harms? 

To be clear:  I believe strongly that solicitude for "human dignity" should be at the heart of our thinking, and our laws, relating to religious freedom.  Indeed, it strikes me that protecting this "dignity" is -- paragraphing Prof. Sunstein -- the "point" of the First Amendment's Free Exercise Clause.  The Establishment Clause, though, might be about something else (e.g., protecting religious freedom and civic pluralism by separating the institutions of religion from the institutions of government).  And, if it is about something else -- this "something else" -- then who should have standing to sue?

Having raised (but not answered) these questions, I'd like to thank the faculty of the University of Chicago Law School for inviting me to participate in this blog-conversation over the last few months.  The Spring quarter is over, and I'll be moving this week back to Notre Dame Law School and to my usual blogging haunts, Mirror of Justice and Prawfsblawg.

Comments

[FrankMCook]

Having grown up Jewish in the midwest in the dsys before the school prayer decision, I didn't need an academic theory to explain the harm of being made to choose on a daily basis whether to celebrate Christianity or to or to stand out as different. I felt the ache.

Yet, the harm to the structure of society is every bit as real. Any casual watcher of the evening news sees evidence of the truth of Madison's claim that the purpose of separation of church and state was (I don't have his language handy so I'll paraphrase)to keep far from our country the religious wars that have plagued Europe. One need only look to Iraq or Darfur to see the danger in making the establishment clause a right without a remedy.

[Roach]

States, until the late 19th Century often had established Churches. It is only the federal government that should be burdened by the establishment clause. There is little wrong with Catholic Maryland, Episcopal Georgia, polyglot Virginia, and Congregationalist Massachusetts. Smaller communities can and should privilege religion if they choose; it is only on a national level where there is greater dissensus that this hard rule makes sense.

Incidentally, Having grown up Catholic in the northeast in the days after the school prayer decision, I didn't need an academic theory to explain the harm of being made to choose on a daily basis whether to celebrate official atheism/liberalism/humanism/anti-Christisitanity or to or to stand out as different. I felt the ache.

Our enforced official agnosticism at the behest of thin-skinned religious minorities has done more to harm society and its necessary moral consensus than the so-called dignitary harms suffered by religious minorities back when religion and public schooling were on the same page in passing along our civilizational heritage. We've gone way too far to accomodate this hyper-sensitivity.

[LAK]

Glad it is no longer the 19th century! Now we have electricity, and black people can drink at the same drinking fountains, and we know that the Earth is a lot older than 6000 years! Oh and that pesky 14th amendment jurisprudence! I forgot about that one. States have to abide by the bill of rights too! Bummer. Damn you progress!

Teary eyed longing for a time past when whimpy white conservative dorks and their religious institutions had all the social influence and power is most amusing.

[Erasmussimo]

Mr. Roach, would you please explain what activities required you "to celebrate official atheism/liberalism/humanism/anti-Christisitanity" while you were in school?

[Jon Rowe]

"States, until the late 19th Century often had established Churches."

Actually Mass. was the last state to have an established Church. And it ended in 1833 well before the ratification of the 14th Amendment.

The right, therefore, to be free from a state established Church, arguably, is one of the "privileges or immunities," contained in the 14th Amendment.

[Roach]

I stand corrected on date. I do believe oath requirements stood until later.

As for your reasoning, if states voluntarily abandon something the have the right to do, that does not mean it's of constitutional moment. It does not mean they can not change their minds and return to their old ways.

In any case, establishment is very different from innocuous things like school prayers, Ten Commandment displays, etc. Almost every state and our nation has In God We Trust as its motto. Some kind of watered down respect for religion in general and Christianity in particular is very much the American way. It's simply mean and ungenerous to deprive the majority the right to celebrate its common beliefs because of a prickly sense of persecution or a generic hostility to America in its historical form.

[Erasmussimo]

Mr. Roach, you offer opinions but no legal reasoning. It is your opinion that school prayer is innocuous; I don't share that opinion. It is your opinion that watered-down respect for religion is the American way; I don't share that opinion. It is your opinion that it is mean and ungenerous to [...]; I don't share that opinion. And attributing a generic hostility to American in its historic form to those who want to apply the Constitution rigorously is most certainly an opinion I do not share.

The fact that all you can offer are opinions suggests to me that you have no legal reasoning to support your opinions.

[Roach]

Frankly, the legal realists took away legal reasoning and told us that all "legal" reasoning was just a power grab masquerading as a legal science.

But my legal reasoning, if it's not apparent above, is that the historical meaning of establishment in the Fist Amendment did not preclude formal and informal support for Christian religion by the various states (and also various localities) in the early years of the Republic, suggesting that a reading of the First Amendment that would ban those things permitted by the amendment's authors is the imposition of an au courant opinion from some source other than the legal meaning of the words involved.

Also, it seems to me legal reasoning to say states once did something, now they don't, but their decision not to does not take away their authority to do so.

Incidentally, you seem short on legal reasoning and long on labeling opinions with which you disagree "opinions" as if there were some other category of opinions out there more worthy of consideration. And I was offering two opinions: one on the legal demerits of our extreme establishment jurisprudence and another on the wicked character of those that would take crosses and Ten Commandments and school prayers the like from public spaces.

Erasmussimo, your pedantry (beginning with your screen name) is amusing . . . but for the fact it is so lacking in self-awareness.

[LAK]

"wicked character of those that would take crosses and Ten Commandments and school prayers the like from public spaces"

Jesus roach, you're insane. You seem not to recognize that in the last 100 years, religion has eroded and now there are millions of people who are secular and who see religion for what it is - a bunch of ghost stories designed to regulated behavior in primative times. Atheists, agnostics nd the like didn't really exist 200 years ago - either did antibiotics. But we are here now, and forcing us to engage in school prayer or look at the ten commandments in a courthouse violates our constitutional rights.

"In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own."

"Ignorance is preferable to error, and he is less remote from the truth who believes nothing than he who believes what is wrong."

-Thomas Jefferson

[Eileen]

I was brought up Catholic, and have had my differences with the church. I have since just believe. I am one of those in the X Generation, who just want to believe.

I am working for an upcoming conference in Spain whose them is about a time when Christians, Jews and Muslims all got along. This is what I would like the world to be again...getting along.

Hopefully something great will come out of revisiting that time.
The web site is: www.EsotericQuest.org

[George M Weinert V]

The founders, in their great wisdom chose to avoid 'establihsing' any offical religion while concurrently relying on old Enlish law which in turn relied on Biblical Law - the prima facie is undeniable.

We've always accepted this obvious fact until the insanity of the sixties led to multicultural myopian and psuedo-intellectual atheism. Why bother with such trival discussions?

If individuals or groupd don't like the USA and our foundations, let them go elsewhere!

(like Iran, Gaza or North Korea)

[reshufflex]

"It's simply mean and ungenerous to deprive the majority the right to celebrate its common beliefs because of a prickly sense of persecution or a generic hostility to America in its historical form."

I think I heard the same phrase used at last week's Baton Rouge Klan rally. The old dear-history canard. Seriously, you really do sound like, say, Edmund Burke in his simultaneous defense of the crusty monarchy and repudiation of seminal democracy. Too bad he ran into Paine.

Is it really so hard to let go of your metaphorical black and white TV? Or maybe you just need to relax. Your precious meme of gods and goblins is not soon going away-the matrix of the establishment clause and the boys in black robes will suitably protect you from those invasive freethinking types. Religion, like body odor, has a way of forever prevailing upon the masses.

Still, I must ask. Don't you sometimes, maybe in the quiet of the night, ask yourself why it is that you feel the need for crosses and scripture to litter the landscape like so much graffiti? Do you really think that your god accords you any atemporal measure for pious slogans being etched on concrete walls?

Hell, he didnt even get upset when his kid chose a nondescript cross to wither upon...

[LeGioNofZioN]

Religion sets up basic rules of behaviour in which a society may invest its attention. With a uniform approach to morality, unity is reached and upheld by society. Canada and America have issues with multiculturalism as an ideology and have no unifying sense of morality. This is worse in Canada than in the States, but I believe Canada is a far more successfully integrated society and can serve as a microcosm illustrating what will come next in the USA. there is no harm in the West Indies where mutiple cultures and fiaths exist under a Christian banner. there are no religious or cultural probelms where the host culture asserts itself and immigrants conform. Mosques and Synogogues are built by those who worship without government help (no churches are given government help either). The prevailing Christian influenced sense of morality does not impede any others equal chance or opportunity. Islands like Trinidad and Barbados, St Vincent and St Lucia are self described Christian nations yet the government does not endorse one church over another like Europe does. There is no Church of St Vincent like there is a Church of England or a Church of Germany. any nation can be self styled and celebrate is faithful heritage without ofsetting its religious minorities.