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.