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http://ssrn.com/abstract=2097785
 
 

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Not a Winn-Win: Misconstruing Standing and the Establishment Clause


William P. Marshall


University of North Carolina (UNC) at Chapel Hill - School of Law

Gene R. Nichol Jr.


University of North Carolina (UNC) at Chapel Hill - School of Law

July 2, 2012

Supreme Court Review, Vol. 2011

Abstract:     
In Arizona Christian School Tuition Organization v. Winn, the Supreme Court, in a 5-4 decision, held that state taxpayers did not have standing under the Establishment Clause to challenge a state tax program in which taxpayers were given dollar-for-dollar tax credits for their contributions to private, non-profit state tuition organizations (STOs) that had been set up specifically to accept these contributions and then use the donated funds for “scholarships to students attending private schools, including religious schools.” Implicitly rejecting intangible, wisdely-shared, “psychic” harms as a basis for standing, the Winn majority held that though taxpayers might have standing to contest legislative appropriations designed to aid religious enterprises as in Flast v. Cohen, they had no standing to challenge legislative tax credit programs intended for the same purpose because there is no “extract[ion] and spend[ing]” of tax money in aid of religion in the latter program.

This article examines two specific problems that arise from the Winn decision. First, we contend the distinction between concrete, individual harms and widely-shared, intangible claims is inescapably illusory and was inconsistently applied even in the Winn opinion itself. Second, we point out the Court’s assumption that widely-shared, intangible injuries such as psychic harm are not sufficient to confer standing conflicts with a large segment of Establishment Clause jurisprudence that identifies the prevention of such injuries as central First Amendment concerns. Such widely-shared, intangible injuries include coercion, sect preference, and outsider alienation, all harms that have all been posited as lying at the heart of the anti-Establishment mandate. Denying standing to litigants bringing such claims, therefore, undermines the anti-establishment mandate, even if the injury is thought of as intangible. We therefore contend by suggesting that such injuries are non-justiciable, Winn undercuts not only taxpayer standing but much that has been thought to underlie Establishment Clause jurisprudence itself.

Number of Pages in PDF File: 38

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Date posted: July 3, 2012  

Suggested Citation

Marshall, William P. and Nichol, Gene R., Not a Winn-Win: Misconstruing Standing and the Establishment Clause (July 2, 2012). Supreme Court Review, Vol. 2011. Available at SSRN: http://ssrn.com/abstract=2097785

Contact Information

William P. Marshall (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-843-7747 (Phone)
919-962-1277 (Fax)
Gene R. Nichol Jr.
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919 962 5928 (Phone)
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