The Abuse of the Doctrine of Standing

In what’s becoming a depressingly predictable trend, there’s bad news on the church-state front: the Freedom from Religion Foundation’s legal victory over the National Day of Prayer has been tossed out by a federal appeals court. A three-judge panel of the Seventh Circuit dismissed the lawsuit, finding that the FFRF lacks standing and ordering that the lower court decision be vacated. The FFRF plans to seek an en banc rehearing before the entire Seventh Circuit, although this is a long shot at best.

Sadly, I’m not surprised. It was always more likely than not that this ruling would be overturned; the only real questions were how high it would get before this happened and what legal fig leaf would be used to dismiss Judge Barbara Crabb’s carefully reasoned ruling. In this case, it turned out to be the doctrine of standing, which says that only people who have a concrete interest in the outcome of a legal controversy can bring suit.

In general, there has to be something like this – as Glenn Greenwald says, the courts can’t be “free-floating omnipotent tribunals” with the power to decide any controversy. A person or interest group should have to have a stake in the outcome of the case to participate in a lawsuit. But standing should be a low bar to clear, blocking only frivolous and pointless legal claims. Instead, the courts have twisted it into a convoluted and arcane rule where only certain highly specific kinds of injury are permitted as grounds to sue. This means that many meritorious claims, even those relating to the violation of constitutional rights, can never be heard.

In this case, the Seventh Circuit found that the FFRF had suffered no injury from the National Day of Prayer. Apparently, this is true even if public money is used to sponsor and organize the day’s events, even if participation is restricted to certain religious sects that work hand-in-glove with elected officials, even if NDP events specifically endorse one version of religious scripture over others, even if said events include official statements questioning the patriotism, morality or citizenship of those who refuse to participate. Never mind all that – when the President tells you to pray, you can say no, and that’s all it takes for your civil rights not to be violated!

Such reasoning could only come from the mind of someone who’s spent their entire life comfortably in the religious majority and has never had to experience the exclusionary effect of being told that they don’t belong to a privileged circle of political insiders. Under this new era of legal thinking, Congress could pass a law declaring Christianity the official religion of the U.S., and still no one would have standing to object as long as they weren’t being forcibly marched into church by government agents. (And maybe not even then – after all, right-wing judges would reason, they aren’t forcing you to agree with what’s being preached, now are they?)

Turning “standing” into an all-purpose excuse to dismiss a lawsuit is an increasingly common tactic of conservative judges. Another example is the awful 2007 Hein decision which held that expenditures of money by Congress to promote religion confer standing to sue, but expenditures of money by the executive branch somehow don’t. This nonsensical and indefensible decision was obviously decreed by conservative justices in order to reach their desired policy result: permitting the faith-based initiative to continue. (I fear that there are now five members of the Supreme Court who are prepared to bless any church-state violation whatsoever.)

Yet another example would be the Bush-era legal position, shamefully perpetuated by the Obama administration, that even if the government is spying on American citizens in violation of the Fourth Amendment, no one has standing to bring a lawsuit unless they can prove that they personally were illegally surveilled. This is a ludicrous claim that creates a horrendous perverse incentive: the government can get away with any lawbreaking conduct as long as they can successfully cover it up, in which case the courts will do nothing to adjudicate the truth.

The evisceration of the standing doctrine creates a legal paradox: it may well be that some actions by the government are unconstitutional, but no one can do anything about it because no one has standing to have their objections heard. This position makes the Bill of Rights meaningless. The laws set out in the Constitution aren’t just noble aspirations our government should try its best to live up to: they are strict and settled limits on what our elected public servants can and can’t do, and the reason we have a system of checks and balances is to enforce that guarantee. The court, in effect, is abdicating its constitutionally given role by denying a hearing to citizens with a grievance. A more rational position, though one that stands no chance of passing in our current political climate, would be that any governmental action which breaches the Constitution confers standing on any citizen to sue.

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • Dan

    So the decline of this empire will be a march into fascism. And so ends the American Dream.

  • http://eternalbookshelf.wordpress.com (Ani) Sharmin

    This makes me both sad and furious.

    Such reasoning could only come from the mind of someone who’s spent their entire life comfortably in the religious majority and has never had to experience the exclusionary effect of being told that they don’t belong to a privileged circle of political insiders.

    This, I think, is the main reason why such discriminatory policies have so many supporters. Many politicians probably do it to get elected, but I think most people just don’t bother put themselves in someone else’s place—refuse to imagine what it must be like to be part of the minority in a country—and really just don’t get it.

    -Sharmin

  • keddaw

    A more rational position, though one that stands no chance of passing in our current political climate, would be that any governmental action which breaches the Constitution confers standing on any citizen to sue.

    I have been reading some Thomas Paine and this is the exact thrust of his argument (and, I presume, Jefferson’s too) that the Constitution is an agreement between the governed and those elected to govern to the limits of what can be legislated on and what are inalienable rights to be held by the individual short of a super-majority of government and states deciding to alter the agreement.

    I am currently fighting for the institution of a meaningful Constitution in my country, based quite a lot on the US one, and this abrogation of responsibility by one branch of government completely destroys the careful system of checks and balances that were written into it and makes me wonder what the point of creating one here is.

    Judges reducing their power in order to further their political goals for the country will surely backfire. As soon as the political branch realises what it can now legally get away with, and will be allowed to in the future, it will push at the boundaries until the judiciary has no standing and there will only be two branches of government. Progressives will push through their favourite unconstitutional legislation just as much as Republicans. Ironically it will be 2nd Amendment legislation that they will put through that will mean the citizens have no remedies – no legal ones since the courts are toothless and no insurrection as the state has all the weapons.

    I’ll leave the last words to TJ+TP:

    All tyranny needs to gain a foothold is for people of good conscience to remain silent.

    The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

    A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.

    Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

    He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.

    Of all the tyrannies that affect mankind, tyranny in religion is the worst.

  • http://kagerato.net kagerato

    This is one of the flaws in having a small and independent judiciary. If it becomes corrupt — and it will eventually — there’s little recourse. Appointed judges can’t be thrown out at election time. Due to their relatively small number but great influence, they are especially prone to bribery and other back-channel corruption.

    I don’t think that electing all judges would fix the issue, though, because the roots dig deeper than that. We have more than a fair share of corrupt legislators, after all. The election of judges is contrary to the concept of impartiality, anyway. In order to gain votes you must appeal to someone’s values or issues, typically whatever happens to be be popular at the time.

    While it would be nice and simple in theory to say “allow all potential constitutional violations in court”, the practice I’m afraid would be chaotic and burdensome. Our civil courts are already often overburdened with low merit cases where either a contract or the law itself is being interpreted in a highly selective or counterintuitive manner. If any constitutionally based challenge is allowed, without giving courts the chance to dismiss the case upon insufficient standing, it is likely you will end up with much more semantic quibbling in the higher courts.

    Personally, I think the source of the issue lies in the complexity of the law itself. One shouldn’t need years of study to understand the law. (Indeed, that’s understatement. The reality is that it takes years of study to understand just one part of the law — no lawyer or judge knows the entire code.) It’s a wonder to me that the system can even stand, as convoluted as it is. How can anyone be expected to obey laws they do not understand, or often do not even know exist?

    Ask yourself this: why do we need both judges and juries? If juries cannot properly understand the law, are they qualified to determine guilt or innocence (or approximate responsibility in civil cases)? If judges determine what evidence and what aspects of the law are allowed into a case, which is more than enough to guarantee an outcome, why have a jury at all?

    The concept of checks and balances, divided powers and responsibilities, looks so fascinatingly beautiful on paper. The reality that comes out of it is not so glorious. No matter how many independent components are built in, the system will still be corrupted by multiple simultaneous attacks. Further, the adversarial nature of the scheme will be used in narrowly self-interested ways to turn people who would otherwise be allies into enemies.

    At this stage in time, I have little confidence that processes meant to be self-correcting will actually correct themselves without external intervention.

  • http://www.whyihatejesus.blogspot.com/ OMGF

    Reminds me of the recent case that the SCOTUS threw out on the tax subsidies being paid to people to directly fund religious education…or how they threw out Newdow’s challenges to the Constitutionality of the pledge of allegiance. This is a travesty.

    Did they even say who does have standing to challenge this or is it another one of those cases where they’ve shut the door to anyone challenging it?

  • Sarah Braasch

    It is infuriating. As Dan Barker of FFRF put it, this means that the President can declare a State Religion, and no one can challenge him, if he chooses to do so.

    Don’t be shocked when this happens during the next Republican Presidential term of office.

    The more sensible path is the one we were on — an exception to the standing limitation for the Establishment Clause, which allows federal taxpayers to sue, even for nominal abuses of tax dollars, and even when perpetrated by the Executive branch.

    This is the proper teleological reading of the Establishment Clause. Otherwise, you get nonsense decisions, like this one.

    And, with the devolution of the strict separation of powers (e.g. administrative agencies, which perform quasi judicial, executive, and legislative functions), this makes the most sense.

  • Sarah Braasch

    I will say that I was pleasantly surprised by Kagan’s dissent on the Wynn ruling. It was nice to see her make a strong stand on the side of secularism.

  • Sarah Braasch
  • Maynard

    It is infuriating. As Dan Barker of FFRF put it, this means that the President can declare a State Religion, and no one can challenge him, if he chooses to do so.

    Don’t be shocked when this happens during the next Republican Presidential term of office.

    Maybe this should happen? (It would probably be christianity.) While other religion’s organizations throw up court challenges, non-believers can simply ask “what denomination?” And then, “which sect?” Pit each against each other in a political melee to be the “One True American Religion.”

    Whittle down the state sponsored religion to a despised minority then get the rest of the nation to amend the constitution to draw a broader line between state and religion.

    (That worked out so easily in my brain…)

  • Nathaniel

    Near as I can tell, standing is trotted out whenever a judge or panel doesn’t want to engage in a legal argument they know they have to endorse on its merits, so they simply deny the right have an argument in the first place.

  • http://www.commonsensethoughtcontrol.com Tawnos

    It is ironic that the standing denied here finds its origins back in Fairchild v. Hughes, a case used to uphold the 19th amendment (women’s suffrage) against a private lawsuit attempting to invalidate it. Continued in Frothingham v. Mellon, the burden of suffering “direct injury as a result of the enforcement, and not merely … some indefinite way in common with people generally” provides an interesting legal hurdle. The closest thing we have to standing is that we are being made to pay money to help the state establish a religious practice. Essentially, we are paying to have our constitutional rights abridged, which is direct injury since we’re paying for something that says “you’re less of a citizen if you don’t participate in this national event.”

    Under Everson v. Board of Education, “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” Clearly, there is a form of standing based on tax, but it may require attempting an unused path. For example, petitioning the government for a balance to the NDOP – the National Day of No Praying. On that day, if the logic applied thus far holds, the government may specify that it does not want people to pray at all. At the very least, it would provide a bit of perspective to the issue of standing, though we’re in such minority that I wonder how far such an effort would make it.

  • kennypo65

    America is dead. I was hoping I would be before it was, but this is not the case. I love my country, but I don’t live there anymore, because it no longer exists.

  • http://www.daylightatheism.org Ebonmuse

    Clearly, there is a form of standing based on tax, but it may require attempting an unused path.

    Unfortunately, Tawnos, that isn’t so. The 1960s Flast v. Cohen decision established a precedent that American citizens could sue to enjoin the government if any of their tax money, however small the amount, was allocated by Congress to promote or support religion. But the right-wing SCOTUS narrowed that exception in the 2007 Hein v. FFRF case I mentioned above, which handed down the credulity-defying ruling that this principle only applies to specific allocations by the legislative branch. If Congress allocates money to the President without putting any conditions on how it can be used, he can order it spent to directly fund churches (or, apparently, anything else he wants), and no one has any standing to contest it.

    James Madison wrote that “the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever” in opposition to such religious establishments. But the Supreme Court apparently no longer considers this principle to be operative in America. (The lone, small consolation is that the court didn’t actually overturn Flast, although several current justices have expressed the wish to do so.)

  • Tom

    It is most strange to encounter, in a legal system supposedly built to be fair and impartial, a rule being applied in such a way as to specifically forbid certain kinds of impartiality.

  • http://verbosestoic.wordpress.com/ Verbose Stoic

    I’ll skirt the religion question and tax questions and address the surveillance one: it’s not simply a matter of them being able to cover it up. It means that in that specific case they’d never be able to actually use that information in pretty much any way against the person they got the information from, because in order to use it in any court they’d have to reveal where they got the information. And doing that would pretty much prove that they got it from that unconstitutional surveillance.

    This would even apply if they used it merely to identify people to investigate, because any criminal or civil trial lawyer will spend a lot of time trying to find out how they knew to target that person. If they say “Just random”, then that wouldn’t be valid in the U.S. (as far as I know); they’d have no justification for the investigation and that would get the case tossed out. But if they say it came from this system of surveillance, then the person would have standing for a Fourth Amendment challenge. And if they just tried to run around the courts entirely, that would be a completey different legal challenge.

    So it seems to me that this standing doctrine basically kicks in in cases where some law may be on the books but ultimately it really doesn’t actually have any impact on anyone’s life. If it ever did, then you could find someone with standing.

    For the National Day of Prayer — okay, I’m not going to skirt it anymore — the question may turn on the idea of discretionary funds or declarations that can be used for any reason the President sees fit. In that case, it’s already presumed that that will be merely a personal decision and not something that falls under direct government control/advocation. If you look at the list of National Days, a not insignificant number of them are aimed at specific cultural groups and even nationalities that quite likely should not be recognized by the U.S., and yet are. I doubt Americans as a whole should be made to recognize “German-American Day” or “Greek Independence Day”, and yet they seem to be National Days in the U.S., so it seems that that’s just what’s done there.

  • http://www.whyihatejesus.blogspot.com/ OMGF

    So it seems to me that this standing doctrine basically kicks in in cases where some law may be on the books but ultimately it really doesn’t actually have any impact on anyone’s life. If it ever did, then you could find someone with standing.

    You’re making the same mistake you did over on NFQ – assuming that if the courts decided someone doesn’t have standing, it must mean that the law is unobjectionable. That is not necessarily the case. The merits of the law are a separate issue from standing and one can not assume that a law is just or proper simply because a case was thrown out for a tangential reason. (Of course, that’s exactly what the judges in question and those pushing to erode our rights want you to think and you’ve either fallen prey to their ambitions or are part of the machine trying to get people to think that way…or both.)

    For the National Day of Prayer — okay, I’m not going to skirt it anymore — the question may turn on the idea of discretionary funds or declarations that can be used for any reason the President sees fit. In that case, it’s already presumed that that will be merely a personal decision and not something that falls under direct government control/advocation.

    And, that’s the problem. The President does not receive tax funds (excluding his salary) that he gets to spend on anything he wants in his official capacity…or at least should not be allowed to trample on the rights of individual citizens to not pay taxes to support religious institutions. In acting in his official manner, he is speaking for the government of the US and is causing the US to violate the first amendment. If the president wants to donate his personal money to churches, that’s fine. He’s not allowed to do so with tax funds…or at least wouldn’t be allowed if the courts would actually rule on the case instead of punting it out of court on suspicious and duplicitous grounds.

  • http://verbosestoic.wordpress.com/ Verbose Stoic

    OMGF,

    I’m not saying that the law isn’t objectionable; I’m saying that if you can’t find someone with standing, it has no actual impact on anyone. And it seems perfectly reasonable to say that courts shouldn’t bother with laws that don’t impact anyone, no matter how bad they are. I never claimed that applying standing meant that the law was right, just that the courts are saying “Show me how this impacts someone before we consider that question.”.

    As for the second part, doesn’t “German-American Day” privilege one nationality over another, and not even an American one? I don’t know if that’s actionable in the U.S., but I think that counts as a protected category in Canada, and so it would seem to be in a similar position. Do you have similar problems with it?

    To me, the presence of that day suggests that these day things are more like what happens when cities have “Olympic hero of the moment” days, and so are personal and subjective things that recognize what the mayor thinks important. Again, just like what happened at NFQ we’d have to get into far more details about the American tax system than either of us are able to provide.

  • http://www.whyihatejesus.blogspot.com/ OMGF

    I’m saying that if you can’t find someone with standing, it has no actual impact on anyone.

    And that’s simply not necessarily true. What we are saying here is that the law does impact people and those people are being told that they don’t have standing so that the courts can avoid having to rule on the technical merits of the case. You are begging the question.

    I never claimed that applying standing meant that the law was right, just that the courts are saying “Show me how this impacts someone before we consider that question.”.

    And we aren’t saying the courts shouldn’t consider that question. But, in this case the law certainly impacts all tax payers and all citizens since it’s a question of violation of the Bill of Rights.

    As for the second part, doesn’t “German-American Day” privilege one nationality over another, and not even an American one?

    I think sectarian days like that are pretty stupid unless a compelling case can be made as to why it should be done. Do we have one for some of these? Yes. For all? Probably not. For a day that violates the separation of church and state? No.

    Again, just like what happened at NFQ we’d have to get into far more details about the American tax system than either of us are able to provide.

    Only because you are putting your fingers in your ears and claiming that you can’t hear the arguments.

  • Sarah Braasch

    I completely concur with everything OMGF has said.

    When the President speaks as the President, in his official capacity, and declares a National Day of anything, that is textbook government speech.

    That is not individual speech. I don’t think it gets much more textbook than that.

    To say that the President’s declarations of National Days of whatever don’t impact the citizens, voters, residents, and taxpayers of the United States of America is bogus. (This is why the taxpayer standing exception for Establishment Clause violations was implemented in the first place. Because, sometimes, no one can show a direct, personal injury, which is different from any other citizen; the only direct personal injury (which meets the standing requirement) is often a nominal abuse of taxpayers’ monies.)

    And, the Proclamation does not simply declare a day in honor of prayer. It exhorts citizens to pray. It exhorts citizens to act. It implies that if you are not a praying believer, then you are not being represented in our political process by our President.

    Prayer and faith are neither the business nor the concern of the secular government of the United States of America.

    This should anger the most devout among us more than anyone.

    They are the ones who need the protection of secularism the most.

    To say that there is no difference between a National German-American Day and a National Day of Prayer is to fail to understand the meaning and value of secularism.

    To say that the President’s speech in his official capacity is individual speech is to fail to understand the meaning and value of the distinction between government speech and individual speech.

    Unfortunately, a great many of our elected officials also fail to appreciate the value of separation of church and state.

    They are looking for any opportunity to undermine the wall of separation, because they think they need to strike now, while Christianists are still the majority religion.

    This is not an academic debate. The same tactics are being applied to legislative acts, not just executive acts. And, not just with respect to the federal government, but with respect to state governments as well.

    This is the same debate over the sales tax reimbursements (a direct state subsidy) to the Ark Park in KY.

    This is the same debate over the Winn and other similar cases (wherein the state says that you can pay us the tax you owe or you can pay it to this religious institution).

    It is about playing games with semantics to justify government endorsement, advancement, and subsidy of religion and religious institutions.

    And, as the Supreme Court has made clear, in the past, over and over again, if anything violates the Establishment Clause, government subsidy of religion violates the Establishment Clause.

    Without the taxpayer standing exception for the Establishment Clause, the state and federal governments can just play games to justify direct government funding to religious institutions. And, no one can challenge them. That’s why this is so dangerous. That’s why this case is so important.

    I am just in a state of shock that we back-pedaling on this issue.

    The US is regressing and devolving. We are losing our secular, liberal, constitutional democracy. And, we will lose it if we don’t fight to keep it.

    If someone really doesn’t think that this means that the next Republican President will declare a State Religion of Christianity, then that person isn’t paying attention.

  • http://kagerato.net kagerato

    I think the President should be able to make a `National Call to Prayer` provided that it is immediately followed by a `National Moment of Pity for the Poor Fools Who Think Prayer Works`.

    Equal time, folks, equal time.

  • http://verbosestoic.wordpress.com/ Verbose Stoic

    OMGF,

    No, it is absolutely necessarily the case that if standing cannot be granted, it means that there is no impact on any person or group that rises to the standard required for the law. That is, in fact, what standing means. The exception that is being relied on here absolutely proves that, as it was granted as an exception because it was determined that there was an impact there that met the criteria for impact that a court must consider even though the traditional determinants of standing were not met.

    Now, in this case, they are saying that that exception should not be invoked, because that impact is not present. They may well be wrong about standing, but if they are right about standing then that is what they are saying. You are free to argue that the level of impact rises to the required level and that it should be considered standing, but as it stands it is you who are begging the question — by presuming that it does really impact to that level without citing any law to support it — not me, who is simply stating what the standing means. And you can look that up in the paragraph in the comment you tried to quote to prove that, yes, that’s all I was doing there.

    “And we aren’t saying the courts shouldn’t consider that question. But, in this case the law certainly impacts all tax payers and all citizens since it’s a question of violation of the Bill of Rights.”

    Unfortuantely, that is not sufficient for standing, unless you have some insight into the laws or a case to demonstrate that. The exception that you are relying on did not remove standing from consideration for any cases where a violation of the Bill of Rights is what is in question. That is what Ebon Musings wants to see, but he’s smart enough to know that that isn’t what the law says now. I’m not sure if you are equally intelligent.

    “I think sectarian days like that are pretty stupid unless a compelling case can be made as to why it should be done. Do we have one for some of these? Yes. For all? Probably not. For a day that violates the separation of church and state? No.”

    So, are you agreeing that German-American Day should not exist, or that things like it could be equally a violation of the Bill of Rights? Because if you do, then I’d accept your taking on a claim that is consistent, but then ask what basis you have for that strong a position. Is it really the case that the law supports your position, or is there a legal reason why National Days are currently considered to allow such days?

  • http://verbosestoic.wordpress.com/ Verbose Stoic

    Sarah,

    “This is why the taxpayer standing exception for Establishment Clause violations was implemented in the first place.”

    My understanding was that the taxpayer standing exception was not, in fact, implemented on the basis that any potential Establishment Clause violation would be considered to have standing in those cases, but that it was a general case and did not rely on even a Bill of Rights question. But that’s me relying on my memory and a potentially not-so-good article. So, do you have support for the contention that it was based on it being a potential Establisment Clause violation, as opposed to a claim that in at least some cases the use of tax monies unConstitutionally would indicate a potential general harm?

    “To say that there is no difference between a National German-American Day and a National Day of Prayer is to fail to understand the meaning and value of secularism. ”

    No, I dare say it means that I understand it perhaps better than you. In a secular society, the two must be considered to be the same, because all a secular society supports is the idea that religion is to, in fact, be treated exactly like everything else. It is neither to be privileged nor disadvantaged. Therefore, if a President may single out the contributions or extoll the virtues of a particular nationality, culture or philosophy it means that the President may also do it for any religious position. Which would, BTW, include atheism. A President — if this judgement is correct — could very well institute a “National Day of Secular Humanism” and ask people to spend time studying that and the same arguments would apply.

    It is this odd notion that secular somehow means that religion must be sent into the closet, never to be mentioned in any way associated with anything public that, it seems to me, denigrates the value of a secular society and is quite scary to anyone who thinks that freedom of religion is a good idea.

    “To say that the President’s speech in his official capacity is individual speech is to fail to understand the meaning and value of the distinction between government speech and individual speech.”

    I think you’re missing my point on that. My point is to raise the hypothesis that the tax money in this instance is, in fact, coming from a fund set up specifically for the President to promote things that he, personally, thinks will benefit the nation. As such, the President will then espouse things that he personally thinks it is useful to recognize. This, then, will be a personal view by definition. The President in his official capacity is indeed allowed and I’d say required to in some sense support and promote things that he personally finds worthy. Otherwise, you might as well just have a computer running the country … or, perhaps, a Prime Minister like other nations have.

    I could be wrong about that, but so far you haven’t given any evidence to show that I’m wrong or that legally these funds really do fit into the exception that you think they fit into.

    As for the U.S. devolving and people playing semantics games … well, perhaps they are. But you need to fight that by citing the law and showing that by the law they are incorrect. If they are making the correct judgement by the law calling that abuse or semantic games does not, in fact, help your case at all. It will only alienate undecided people who see that the arguments you’re arguing correct are no better than the ones you call wrong. And that’s why, at NFQ, my discussion there ended up with the neutral “We need to know what the law says” position.

  • Sarah Braasch

    I’m not going to do a constitutional law tutorial, but very briefly:

    Generally speaking, there is no taxpayer standing. You can’t sue, because you don’t like the way your tax dollars are being spent.

    The exception was created specifically for the Establishment Clause, because, without it, no one could challenge many govt actions, which clearly violate the Establishment Clause.

    The govt’s responsibility does not end with the question of neutrality. The Supreme Court has made this clear many times in the past, despite the fact that current conservative court members are attempting to undermine this principle. That is what the Christianists are arguing to try to justify direct govt subsidy of religion.

    The govt has a responsibility to make sure that its speech does not violate the Constitution.

    Secularism means that the govt has nothing to say about religion and religion has nothing to say about government. Government does not go out of its way to undermine religion, but if govt has a secular purpose for enacting a law, and it incidentally infringes upon your exercise of your religion, too bad, so sad. (This is still the current law in the US, at least with respect to the states, although many states are now enacting their own RFRA’s, to mirror the federal version, which the SC said may not be used against the states.)

    I refer to the US version of secularism as lapsed secularism.

    Somehow, the public consciousness has been manipulated into thinking that secularism means that the government has an affirmative duty to make sure that each and every citizen has the ability to practice his or her religion however he or she wishes, regardless of whether or not such practice is in contradiction to secular laws.

    If that’s the society you want, you’re welcome to it. That’s not the society I want.

    Nothing will undermine our democracy faster. Nothing will precipitate the devolution of our democracy into communitarianism and then anarchy faster.

    And, no one suffers more under such a system than women and children.

    And, on a final note, constitutional interpretation IS the job of the judiciary. And, of course, the Supreme Court is the final arbiter of constitutional interpretation.

    Also, the President takes an oath of office to uphold the Constitution of the United States. Responsibility to uphold the Constitution doesn’t end upon taking office. This is something our legislators need to be reminded of as well.

    I strongly suggest to everyone that they read the Supreme Court Establishment Clause jurisprudence concerning this issue.

    Basically everything I have said above is in Kagan’s dissent to the Winn ruling.

    Obviously, I am not a judge or a justice, but, in my opinion, the actions of AZ in the Winn case, the actions of KY in the Ark Park case, and the actions of the President in declaring a National Day of Prayer are all Establishment Clause violations.

    And, I think the Religious Right knows that they are Establishment Clause violations.

    Which is why they are trying to manipulate what they see as the only possible loophole — the taxpayer standing exception for the Establishment Clause.

    They are trying to make it as difficult as possible for voting and taxpaying citizens of the United States of America to petition their government for redress of Establishment Clause violations.

    And, while standing is a legitimate and useful principle, the abuse of standing, as Ebonmuse has pointed out, to deny voting and taxpaying citizens their day in court, is shameful.

    And, the Religious Right should be ashamed of themselves.

  • Sarah Braasch

    Also, to counteract the very wrong notion that secularists want to eradicate religion from the public space –

    Secularists don’t give two hoots about the religious exercise of private citizens in the public space.

    That’s the whole point of secularism.

    Secularists care that the government not endorse, advance, or subsidize religion or a particular faith, or non-faith, for that matter.

    The government should not consider religion or religious doctrine at all when enacting laws.

    Now, could this mean that the government might enact a law that incidentally infringes on the religious exercise of private citizens.

    Perhaps. And, if it does, too bad, so sad. As long as the law was enacted for secular reasons, you don’t get to reject it, because of your religion.

    But, the most devout, and many do appreciate the value of secularism and the separation of church and state, should understand that this system of secularism is still the best thing going.

    Only a truly secular government makes real freedom of religion possible. And, not just for the majority religion. But, for all religions.

    So, yeah, sometimes, you will be forced to follow secular laws that disagree with your religious doctrine.

    That’s the way it goes.

    It’s still better than the alternatives.

    I’m just really tired of the Christianists and their headlines and misinformation about how the atheists want to stop public prayer.

    No they don’t. They never did.

    FFRF and other freethinking activist groups and organizations want our government to remain secular and to abide by our godless Constitution.

    This is in everyone’s best interests.

  • Sarah Braasch

    Also, just to be clear, just because there exists an exception for the Establishment Clause regarding taxpayer standing, doesn’t mean that the harm doesn’t have to be real.

    It can’t be a potential, theoretical harm.

    It still has to be a real harm — a direct, personal injury.

    It’s just that that injury can include the abuse of taxpayer monies, even a nominal amount, whereas, typically speaking, this is not the case.

    But, it should be obvious why such an exception is necessary in Establishment Clause cases.

    I can imagine many scenarios wherein, if a voting and taxpaying citizen could not object on the basis of taxpayer standing, then no one would be in position to object to such Establishment Clause violations.

    No one would have standing. But, that doesn’t make the violation any less real.

    The Religious Right (the theocrats and the Christianists) understand this as well.

    Why do you think they’re attacking taxpayer standing for Establishment Clause violations left and right?

    Because they know that if they can get rid of the exception, that they can establish the US as the White American Christian Theocracy of their dreams, and no one will be able to challenge them.

    But, it’s really stupid for them. Because nothing guarantees that Christianity will always be the majority religion. In fact, it won’t be. (Thus, the firestorm now.)

    This is why they are so fearful of Islam and Muslims.

    This is why you are starting to hear talk from the Religious Right that the First Amendment doesn’t guarantee religious freedom for Muslims.

    This is why the House is holding hearings on the dangers of Islam.

    Secularism is starting to sound pretty good, isn’t it?

    VS,

    I actually really appreciate your last comment, because it gave me the opportunity to clarify all of these really important and too-oft misunderstood constitutional issues.

    So, thank you.

    I think it deserves reiterating, even on an atheist website.

    Because, the Religious Right couches their fallacious and duplicitous and mendacious arguments in specious reasoning and sophistry.

    It sounds plausible. It sounds reasonable.

    Who could be against freedom?

    This is how they get such a vast segment of the US population to vote against their own best interests.

    I’m trying to add some counterweight.

  • Sarah Braasch

    Also, the government making sure that its own actions do not endorse or advance or subsidize religion or a particular faith or non faith is not hostility towards religion or favoritism towards atheism.

    It’s secularism.

    And, it makes freedom of religion possible.

    As well as democracy and women’s rights, and human rights generally.

    Many minority religious groups understand this — Mormons, Seventh Day Adventists, JWs, etc., etc. tend to be strong proponents of separation of church and state (with respect to some issues at least) and actually work with some freethinking groups on some issues (e.g. AU).

    Because they know that they’ll be the first ones persecuted by the majority religious group when secularism falls.

  • http://www.whyihatejesus.blogspot.com/ OMGF

    VS,

    No, it is absolutely necessarily the case that if standing cannot be granted, it means that there is no impact on any person or group that rises to the standard required for the law.

    You’re one of those people who thinks that if someone gets arrested that that proves they did something wrong, aren’t you? (Or, more precisely that if one isn’t arrested then by default they have not broken a law.) Your argument boils down to the idea that if standing is so narrowly defined by the courts to prevent anyone from suing, then that necessarily means that no one can be harmed by the law that is under dispute. This is putting the cart before the horse.

    Unfortuantely, that is not sufficient for standing, unless you have some insight into the laws or a case to demonstrate that.

    My bad, I should have said “Establishment clause” instead of “Bill of Rights.” Better? But, hey, thanks for the not-at-all-veiled personal attack. How stoic of you.

    So, are you agreeing that German-American Day should not exist…

    I’m saying that sans a secular and compelling reason to have such a day, it should not. But, that’s neither here nor there. We’re discussing the merits of the NDoP, which uses taxpayer money to finance and promote religious interests.

    I think you’re missing my point on that. My point is to raise the hypothesis that the tax money in this instance is, in fact, coming from a fund set up specifically for the President to promote things that he, personally, thinks will benefit the nation.

    So if our Muslim president B. Hussein Obama (tongue in cheek) decides that Islam and Sharia law will benefit the nation, you have no problem with him using taxpayer money to set up councils to push for Sharia law and mandatory conversions of Americans to Islam. It’s his money to do with as he pleases, right? Or maybe he would think it’s a benefit to the country for him to use that money for throwing lavish parties for his friends and buy hookers and coke. Who are you to say otherwise, according to your own argument?

    It is this odd notion that secular somehow means that religion must be sent into the closet, never to be mentioned in any way associated with anything public that, it seems to me, denigrates the value of a secular society and is quite scary to anyone who thinks that freedom of religion is a good idea.

    Back to this again? Please spare us.


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