Standing on Holy Ground: How Rethinking Justiciability Might Bring Peace to the Establishment Clause

Abstract

The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. This article sets out a theory that altering one of these problems might correct the other. Analogizing to the Treaty of Westphalia’s temporal limit on the airing of grievances, the Supreme Court could replace the current standing chaos with a limit to claims against current government activity. Such a rule would foreclose the ability of pro-religion forces to new domination of the public square, but would also prevent anti-religion forces from removing the vestiges of past government activity that are central to the American experience. Current doctrine ends with many of the same results, but doing so under the standing doctrine would remove the camouflage of alternative substantive tests. Simultaneously, it would decrease the incentive of participants in the national political struggle over religion to ever more hostile moves. The clarity this doctrinal shift would provide could help improve both religious freedom and peace in the national dialogue.

Keywords: Establishment Clause, religion, First Amendment, Constitution, neutrality, standing, justiciability