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?)
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.