NONTAXPAYER STANDING, RELIGIOUS FAVORITISM, AND THE DISTRIBUTION OF GOVERNMENT BENEFITS: THE OUTER BOUNDS OF THE ENDORSEMENT TEST

• Published in: Harvard law review Vol. 123; no. 8; pp. 1999 - 2020
• Format: Journal Article
• Language: English
• Published: Cambridge Harvard Law Review Association 01.06.2010
• Subjects: Bias; Christianity; Church & state; Church and state; Civil damages; Clauses; Coercion; Constitutional law; Courts; Endorsements; Establishment clause; Favoritism; Federal courts; Government; Injuries; Laws, regulations and rules; Litigation; Navies; Plaintiffs; Religion; Religious persecution; Standing (Law); Taxpaying; Violations; Welfare; United States > US
• ISSN: 0017-811X; 2161-976X

The requirement that a plaintiff show injury-in-fact to have standing in federal court has proved "particularly elusive" in the Establishment Clause context. This is because "violation of the clause does not require coercion on specific individuals" or other particularized harm, but rather occurs whenever government action endorses or favors one religion over another (or favors religion generally). Unlike most litigated injuries, the harm that flows from an Establishment Clause violation is "inherently generalized": the damage, broadly speaking, accrues to society as a whole rather than to individuals as such. Courts have laid out a fairly broad injury-in-fact rule for cases involving religious displays and similar alleged Establishment Clause violations. In brief, a plaintiff must have suffered a "personal" injury as a consequence of the claimed violation. Some litigants, however, have sought to extend the rule to less frequent subjects of Establishment Clause litigation, such as the denial of government benefits.