Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause

46 Pages Posted: 10 May 2013 Last revised: 13 Aug 2013

Carl H. Esbeck

University of Missouri School of Law

Abstract

For nearly half a century the Supreme Court has relaxed traditional standards of justiciability and permitted taxpayer standing when a claimant has invoked the Establishment Clause in a lawsuit to prohibit government funding of religion. The Court has recently cutback, however, permitting taxpayer standing only when a tax is extracted from the claimant and money is appropriated by a legislature to fund a statutory program that directs the use of public aid for religion.

What has gone unremarked upon is the Supreme Court’s parallel line of reduced-rigor standing cases where an action is brought because of a claimant’s personal exposure to unwanted religious expression by government. Typical of such cases are a challenge to prayer at the beginning of a local city council meeting and memorials in a public park depicting the Ten Commandments. In these unwanted-exposure cases the underlying claim on the merits is that the government has taken sides on a religious question. The apparent injury is largely generalized, however, resembling that suffered by nearly everyone who wants to live under a government that does not exceed its constitutional restraints. Nevertheless, the Court has permitted such reduced-rigor standing so long as the claimant is personally exposed to her government’s message and it is one with which she disagrees. The extent to which the observer is “offended” is irrelevant, as is the frequency of the exposure.

If unwanted-exposure standing comes under the same reexamination by the Supreme Court as has taxpayer standing, any resulting cutback would mean that no-establishment principles will go unexamined and thus under-enforced. That prospect ought to be received with some concern because principles of church-state separation work to safeguard religion from exploitation. The political branches of government will sometimes use religion in a manner that mixes God and Country, and that cannot but compromise religion and debase its symbols.

Keywords: standing, taxpayer standing, establishment clause, religious liberty, religious freedom, religious expression, religious symbols, separation of church and state, first amendment, justiciability

Suggested Citation

Esbeck, Carl H., Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause. 7 Charleston L. Rev. 607 (2013); University of Missouri School of Law Legal Studies Research Paper No. 2013-11. Available at SSRN: https://ssrn.com/abstract=2262965

Carl H. Esbeck (Contact Author)

University of Missouri School of Law ( email )

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573-882-4984 (Fax)

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