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.

This article examines two specific problems that arise from the Winn decision. First, we contend the distinction between concrete, individual harms and widely-shared, intangible claims is inescapably illusory and was inconsistently applied even in the Winn opinion itself. Second, we point out the Court’s assumption that widely-shared, intangible injuries such as psychic harm are not sufficient to confer standing conflicts with a large segment ofEstablishment Clause jurisprudence that identifies the prevention of such injuries as central First Amendment concerns. Such widely-shared, intangible injuries include coercion, sect preference, and outsider alienation, all harms that have all been posited as lying at the heart of the anti-Establishmentmandate. Denying standing to litigants bringing such claims, therefore, undermines the anti-establishment mandate, even if the injury is thought of as intangible. We therefore contend by suggesting that such injuries are non-justiciable, Winn undercuts not only taxpayer standing but much that has been thought to underlie Establishment Clause jurisprudence itself.

One thought on “Marshall & Nichol on Standing and the Establishment Clause

  1. The Flast rule is not defensible, in my view, and was concocted by the Court simply to make it easier for it to reach out and invalidate school funding programs. If taxpayers have standing to go after tax credit programs, they should have standing to object to other programs and actions that are not consistent with, say, federalism and separation of powers. As I argued here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1905032

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