Stigmatic Harm and Standing
72 Pages Posted: 11 Apr 2006 Last revised: 6 Oct 2007
If the government violates the law in a way that stigmatizes a particular group, does a member of that group have standing to challenge the violation in federal court? In the well-known case of Allen v. Wright, the Supreme Court said no. According to the Court, stigmatic harm is too abstract and generalized to support standing in most cases. To permit standing on the basis of stigmatic harm alone, the Court stated, would "transform the federal courts into no more than a vehicle for the vindication of the value interests of concerned bystanders."
This Article revisits that decision. It begins by explaining that, despite Allen, the Court has never completely ruled out stigmatic harm as a basis for standing. In equal protection, electoral districting, and Establishment Clause cases, the Court has sometimes invoked stigmatic harm as a basis for standing, while in its recent opinion in Lawrence v. Texas the Court relied on stigmatic harm to reach an issue that was not necessary to the resolution of the case. The Article then makes the normative claim that stigmatic harm should be a sufficient injury for purposes of standing. Drawing on social science research, it examines the nature of stigma, the role of law in creating and reinforcing stigma, and the harms experienced by the stigmatized. This research shows that stigmatic harm is just as concrete as other injuries the Court recognizes as sufficient for standing. Finally, after considering a number of possible objections, the Article describes various scenarios in which plaintiffs might rely on stigmatic harm as a basis for standing.
Keywords: standing, stigma, injury-in-fact, lawrence v. texas
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