"Standing" and church-state issues!
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Justices rely on 'standing' in church-state disputes
June 29, 2011
by Adelle M. Banks
WASHINGTON (RNS) As the U.S. Supreme Court ends its 2010-2011 term this week, legal scholars say a decision issued two months ago is likely to resonate within church-state debates for years to come.
On April 4, the justices rejected a challenge to an Arizona school tuition credit program that largely benefits religious schools, saying taxpayers did not have legal grounds to challenge a tax credit as government spending.
At the heart of the decision was an arcane yet essential legal term
> -- "standing," or a plaintiff's right to sue.Critics say the court increasingly relies on standing to dismiss church-state challenges without addressing the merits of the complaints.
Whatever the court's reasoning, the Arizona ruling already is influencing other cases that touch on the First Amendment's prohibition on a government "establishment" of religion:
> -- A Wiccan chaplain lost a religiousAnnie Laurie Gaylor, co-president of the Freedom From Religion Foundation, said by focusing on the standing issue, the court's conservative majority has reduced its ability to hear cases on their merits.
> discrimination case in a federal appeals
> court on June 1, which cited the Arizona
> decision in its ruling.
> -- Two weeks later, the Freedom From Religion
> Foundation voluntarily dropped its case
> challenging tax exemptions for clergy housing
> in light of the Arizona decision.
> -- That same atheist group is now carefully
> mulling whether to seek an appeal in a case
> it lost trying to declare the National Day
> of Prayer proclamation by President Obama
> "They are slamming the door shut andshe said.
> they do not want any examination of
> the constitutionality of governmental
> support for religion,"
> "It's just rendering our EstablishmentGroups like Gaylor's had already taken a hit when the high court ruled in 2007 that taxpayers associated with the atheist group did not have standing to challenge the White House initiative that channels federal funds to religious groups providing social services.
> Clause meaningless because we cannot
> enforce it."
But with Arizona, conditions have grown worse, Gaylor said.
> "It's such a chilling effect,"she said.
> "Taxpayers, we're just sittingWriting for the 5-4 majority in the Arizona case, Justice Anthony Kennedy defended the reliance on standing:
> out there in the cold."
> "In an era of frequent litigation, ... courtsConservative Christian legal groups like the American Center for Law and Justice hope the April decision in Arizona Christian School Tuition Organization v. Winn will help them in future cases.
> must be more careful to insist on the formal
> rules of standing, not less so."
Citing the Arizona decision, ACLJ lawyers hope to convince the high court to reject the idea of "offended observer" standing with a case about an Ohio county court judge who has posted the Ten Commandments on his courtroom wall.
> "The people who sued him -- they don'tsaid Jay Sekulow, the ACLJ's senior counsel, of the American Civil Liberties Union.
> like to look at the poster,"
> "So what?"Melissa Rogers, a church-state expert at Wake Forest University Divinity School, said standing is not just a dry legal concept.
> "It can make the difference between whethershe said,
> the Establishment Clause is a vibrant source
> of values that protect us and protect the
> religious liberty that we enjoy,"
> "or whether it's a paper promise thatThe church-state arguments over taxpayer standing often refer to a 1968 case, Flast v. Cohen, in which the Supreme Court ruled that taxpayers could sue when Congress provided financial aid to public and private schools, including parochial schools.
> theoretically bars certain things but
> not in practice."
Some justices think the Flast decision should be overturned or narrowly interpreted; others, like first-term Justice Elena Kagan, think it paves the way for taxpayer cases to be considered.
Kagan, in a strong dissent in the Arizona case, said the majority's decision "devastates taxpayer standing" in cases involving the Establishment Clause.
> "However blatantly the government may violateshe wrote.
> the Establishment Clause, taxpayers cannot
> gain access to the federal courts,"
With losses in federal court, church-state separationists say they're hoping for better success in state courts.
The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, estimates that three dozen states have constitutions that prohibit
> "even more clearly the expenditure ofSo he hopes plaintiffs may have a greater ability to sue at the state level.
> government funds for religious purposes."
> "So far we haven't seen the same trend ...he said.
> where people are just being kicked out right
> and left because of alleged lack of standing,"
David Cortman, senior counsel of the Alliance Defense Fund, which argued for both the National Day of Prayer and for the Arizona tuition credit program, is not surprised about strategies to move to the state courts.
> "If they can't challenge them in federalhe said,
> courts, they'll certainly challenge them
> in states,"
> "but we'll also be there to defend those programs."-----------------------------