Free Exercise Standing: Extra-Centrality As Injury In Fact

38 Pages Posted: 12 Apr 2019 Last revised: 14 Apr 2019

See all articles by Brendan T. Beery

Brendan T. Beery

Western Michigan University Cooley Law School

Date Written: March 23, 2019

Abstract

Psychic insult—what might fairly, in some cases, be characterized as hurt feelings—is rarely regarded as the kind of injury giving rise to Article III standing in federal courts. For that reason, finding concrete and palpable injuries in some religion cases, especially in Establishment Clause cases, can be difficult. When a plaintiff challenges a government aid program or a religious display on public property or the incantation of a prayer at a public school, the injury is often somewhat abstruse. Cases arising under the Free Exercise Clause are not (or should not be) as problematic. When free exercise is viewed as dynamic and kinetic, free-exercise injuries are discernible and concrete: they occur when a person is forced to practice or participate in religious undertakings against his or her will, or when a person is forced to abstain from practicing or participating in religious undertakings consistent with his or her beliefs.

When free exercise is viewed as prophylactic, on the other hand, the injuries alleged become much more ethereal and obscure: a person may be injured, under this view, by a mere psychic insult, and particularly the psychic insult attendant to loss of control and loss of centrality in American society and culture. This Article explores why Christian conservatives in the United States see extra-centrality as a concrete injury in free exercise cases. First, the nature of evangelism is such that it requires that non-adherents be evangelized; therefore, non-adherents are viewed as accessorial, and their participation in believers’ mission to correct and convert becomes a component of believers’ free exercise of religion. This view of the believer as central and all others as accessorial engenders the perception of extra-centrality and irrelevance as injury. Second, the loss of power by conservative Christians may itself be experienced as a concrete and palpable injury. Finally, the tendency of Christians to see themselves as persecuted contributes to the perception of concrete and palpable injuries even where secularists see mere governmental neutrality.

Some lower courts hold that a plaintiff in a free exercise case has no standing unless he or she is coerced into performing religious practices or expressing religious beliefs contrary to his or her religious views. This view of free exercise standing cannot likely survive a new paradigm under which a majority of the justices on the Supreme Court take a prophylactic view of free exercise and regard the extra-centrality of Christian conservatism in American life as a concrete and palpable injury.

Suggested Citation

Beery, Brendan Thomas, Free Exercise Standing: Extra-Centrality As Injury In Fact (March 23, 2019). St. John's Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3359000

Brendan Thomas Beery (Contact Author)

Western Michigan University Cooley Law School ( email )

300 S. Capitol Avenue
P.O. Box 13038
Lansing, MI 48901
United States

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