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Why the Supreme Court has Fashioned Rules of Standing Unique to the Establishment Clause

10 Pages Posted: 5 Aug 2009 Last revised: 14 Oct 2009

Carl H. Esbeck

University of Missouri School of Law

Date Written: October 13, 2009

Abstract

The U.S. Supreme Court will hear oral argument this fall in Salazar v. Buono, No. 08-472, a matter that involves a Latin cross located in the Mojave National Preserve located in Southeastern California and operated by the National Park Service. First placed there as a memorial to American’s who served in WWI, this Christian symbol is said to violated the Establishment Clause of the First Amendment. Before reaching the merits, however, the Court must first pass on the question of standing to sue. The plaintiff, Frank Buono, is a former employee of the National Park Service and objects to the cross remaining on government land in violation of the government’s duty to separate church and state. He seeks an injunction ordering the cross’ immediate removal. Buono is a former employee of the Park Service and was once assigned to the Mojave Preserve for just under a year. He retired nine years ago and presently resides in Oregon, but he retains an active interest in the Preserve and visits it two to four times a year. Standing to sue entails personalized injury-in-fact, but Buono’s claim falls in a small class of cases of “unwanted exposure” to religious expression attributable to the government. That is, Buono has no individuated injury-in-fact, as is normally required by the Court, for his “injury” is merely the observance of government conduct which he sincerely believes to be unconstitutional. Nevertheless, in two instances - both under the Establishment Clause - the Supreme Court has reduced the normal rigor of its standing doctrine: taxpayer claims and “unwanted exposure” claims. Explaining why the Court has done so is the subject of this extended essay.

Keywords: Establishment Clause, standing, Salazar, Buono, Mojave, unwanted exposure, church and state

Suggested Citation

Esbeck, Carl H., Why the Supreme Court has Fashioned Rules of Standing Unique to the Establishment Clause (October 13, 2009). Engage, Vol. 10, p. 83, October 2009; University of Missouri School of Law Legal Studies Research Paper No. 2009-22. Available at SSRN: https://ssrn.com/abstract=1444628

Carl H. Esbeck (Contact Author)

University of Missouri School of Law ( email )

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Columbia, MO 65211
United States
573-882-3035 (Phone)
573-882-4984 (Fax)

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