Marshall & Nichol on Standing and the Establishment Clause

William P. Marshall (University of North Carolina School of Law) and Gene R. Nichol Jr. (University of North Carolina School of Law) have posted Not a Winn-Win: Misconstruing Standing and the Establishment Clause. The abstract follows.

In Arizona Christian School Tuition Organization v. Winn, the Supreme Court, in a 5-4 decision, held that state taxpayers did not have standing under the Establishment Clause to challenge a state tax program in which taxpayers were given dollar-for-dollar tax credits for their contributions to private, non-profit state tuition organizations (STOs) that had been set up specifically to accept these contributions and then use the donated funds for “scholarships to students attending private schools, including religious schools.” Implicitly rejecting intangible, wisdely-shared, “psychic” harms as a basis for standing, the Winn majority held that though taxpayers might have standing to contest legislative appropriations designed to aid religious enterprises as in Flast v. Cohen, they had no standing to challenge legislative tax credit programs intended for the same purpose because there is no “extract[ion] and spend[ing]” of tax money in aid of religion in the latter program.
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More on the “Now that’s real religious persecution” argument

Over at Mirror of Justice, Matt Lister posted a smart, critical reaction to my previous post on this argument.  Here are some thoughts. 

I’ll frame my comments as a response to Matt’s first point about the non-uniqueness of the argument (though I think I’ll rope in his second point too).  As an initial matter, I think Matt is right, as I’ve also heard this style of argument in the context of poverty, or more generally in the context of deciding to which moral cause it is most useful to allocate one’s energies.  But I had two thoughts:

(1) The argument makes a bit more sense to me when the subject is individual morality — the questions of what is the right way to act, and to what issue or moral problem it is worth devoting one’s finite resources.  That’s not to say that I agree with it, but I at least can understand it.  In the context of constitutionally protected rights, it makes less sense to me.  And perhaps in part for that reason, I guess, one tends to hear it much less in the rights context.  Can you think of any other context involving a constitutional right in which one hears the argument?  I think it would be very odd to hear it in, e.g., the free speech context.  It would be highly unusual to hear something like the following: “Well, sure, the Stolen Valor Act may or may not be a violation of the constitutional right of free speech, but look at all of the terrible ways in which free speech is violated abroad!  That’s real suppression of free speech for you, and it suggests that something like the protection of intentional lying just isn’t that important.”  My guess is that the reason such an argument as to free speech would seem odd to us implicates Matt’s second point.  That is, our culture of free speech protection is extremely vibrant.  And that goes for most other constitutional rights too: most people think that a right is a right, and ought to be vindicated irrespective of how gross the violations of it may be in other places in the world.  But, as Matt suggests in his second point, the current condition or status of religious liberty by comparison with other fundamental rights is more contested, and therefore weaker: we may agree about the extremes, but there is currently a broader (and perhaps ever broadening?) range of (reasonable) disagreement in the middle than there is for, e.g., free speech. 

(2) I nevertheless take Matt’s point that the argument itself is not unique to religious liberty.  Still, there seems to me to be something in addition going on.  It isn’t just the claim that if you really cared about X, then you’d concentrate your efforts elsewhere in the world where violations of X are gravest.  That sort of argument would apply in the poverty context that Matt raises.  But in the religious liberty discussion, there is a further argumentative move going on: if you really cared about X, then you’d concentrate your efforts elsewhere in the world where violations of X are gravest, and you’d realize how good you’ve got it here, and that whatever violations of X you perceive here just aren’t that serious.  I am dubious that this latter move is being made in the poverty example that Matt raises — I certainly don’t think it’s necessary conceptually to make that latter move.  But Matt is much more familiar with the egalitarian poverty literature than I am (many people are), so I am happy to be put straight.

They Really Should Check Their Mailing Lists

Israeli parliamentarian Michael Ben-Ari, a member of the religious National Union Party, has caused a stir by publicly shredding a copy of the New Testament sent to him and all other Knesset members by a Messianic Jewish group, the Bible Society in Israel. Although the Knesset Speaker, Reuven Rivlin, condemned the shredding, Ben-Ari defended it, stating that the New Testament had caused the massacre of millions of Jews over the centuries. Another Knesset member from the religious Shas Party stated that the books should be burned instead, as they had been prepared by a “heretical” Jewish group. Here is a report from the Jerusalem Post.

Virginia Ten Commandments Case Settles

A followup to a case we noted in October. Last month, a federal district court in Virginia approved a settlement in a case challenging the constitutionality of a Giles County high school’s display of the Ten Commandments. Under the terms of the settlement agreement, the school will replace the display with a page from a history textbook that mentions the Commandments without actually quoting them. As we discussed in October, the display pretty clearly ran afoul of existing Supreme Court case law, which is particularly strict about religious symbols in public schools.

Sharp, “Orthodox Christians and Islam in the Postmodern Age”

In a dialogue between the West and Islam, Orthodox Christians can play a crucial role. Unlike Catholics and Protestants, Orthodox Christians have lived in Muslim societies in numbers for centuries. They suffer discrimination and sometimes outright persecution, but they still comprise the largest Christian communions  in the Middle East today. Orthodox Christians thus occupy a unique position that allows them to help interpret Islam for the West and the West for Islam. Andrew Sharp (Virginia Commonwealth University) has written a new book on the subject, Orthodox Christians in the Postmodern Age (Brill 2012), the latest in Brill’s ongoing series on Christian-Muslim relations. The publisher’s description follows.

The patristic, ecclesiological, and liturgical revival in the Orthodox Church has had a profound impact on world Orthodoxy and the ecumenical movement. Orthodox leaders have also contributed to the movement’s efforts in inter-religious dialogue, especially with Muslims. Yet this book is the first comprehensive attempt to assess an Orthodox ‘position’ on Islam. It explains why, despite being neighbors for centuries, relations between Orthodox Christians and Muslims have become increasingly complex as internal and external forces challenge their ability to understand each other and live in peace. It demonstrates how a growing number of Orthodox scholars and leaders have reframed the discussion on Islam, while endorsing and participating in dialogue with Muslims. It shows how a positive relationship with Muslims (and Islam in a general sense) is an essential aspect of Orthodox Christians’ historical past, present identity, and future aspirations.