As part of my ongoing quest to discover under-appreciated jurisdictional issues, I’d like to return to the Court’s recent decision in Town of Greece v. Galloway. In that case, the plaintiffs objected to the use of sectarian prayers to solemnify public proceedings, and the Court found no Establishment Clause violation in part because the public prayers at issue were not deemed coercive. That holding raises an interesting threshold question: in the absence of coercion, did the plaintiffs have standing to bring their claim in the first place? Bizarrely, the Supreme Court has never directly addressed this issue, even though it arises in many Establishment Clause cases.
I can see a bunch of possibilities, all with problems.
1. The Court could try to squeeze a conventional “injury in fact” out of the situation in Town of Greece. For instance, the plaintiffs could have argued that the sectarian invocation imposed costs on attendees in the form of wasted time. But that kind of argument would generate causation problems, including because the town would likely employ other, equally time-consuming forms of solemnification in the event that its actual prayer policy were struck down. There is also something dissatisfying about basing standing on what seems like a convenient excuse, or an “ingenious academic exercise in the conceivable,” when the real reasons for bringing suit — and hearing the case — lay elsewhere.
2. The Court could invoke municipal taxpayer standing, which was briefly noted in the District Court and Court of Appeals decisions in Town of Greece. Obviously, this approach wouldn’t work in many public prayer and display cases. Further, the prayers at issue in Town of Greece seemed to involve only “incidental” expenditures, and did not necessarily involve the kind of direct cash outlay that, under recent cases, serves as the basis of taxpayer standing. Finally, taxpayer standing is generally in decline at the Court, and, in that context, it is odd for municipal taxpayer standing to be going strong. As Judge Sutton has pointed out, cities can have populations larger than those of states.
3. Maybe, in cases like Town of Greece, the Court is thoughtlessly issuing “drive-by jurisdictional rulings” that it would focus on and reconsider in a future case, if only the point were squarely argued. On this view, there was actually no standing in Town of Greece or any similar Establishment Clause case. The main problem with this approach is that it would mean that there was actually no standing in Town of Greece or any similar Establishment Clause case. While objectionable and counter-intuitive, that result isn’t impossible. In fact, something similar happened a few years ago in another Establishment Clause case, Arizona Christian School Tuition Organization v. Winn.
4. Perhaps the coercion issue controls both standing and the merits, such that the two inquiries effectively collapse into one another. This would presumably mean that, in ostensibly finding no Establishment Clause violation on the merits, Town of Greece actually (or simultaneously) found no jurisdiction. That possibility comports with the widespread sense that standing is often just the merits by other means. But the Court has given no sign that it’s issuing jurisdictional holdings in cases like Town of Greece, even though jurisdictional and merits inquiries are different and can have distinct consequences for the parties. And, of course, standing is supposed to be separate from the merits.
5. Coercion could be viewed as relevant to the merits, while something less than coercion might suffice to create “injury in fact” for standing purposes. For example, standing might arise from being religiously offended or from personally witnessing an establishment of religion. This is probably what most people think is going on in Town of Greece. But offense short of coercion normally isn’t enough for standing. For example, stigmatization caused by racial discrimination has been found inadequate. And personally witnessing an illegality usually isn’t enough to obtain standing either. So something unusual must be going on in Establishment Clause cases for this approach to work — and the awkwardness of saying so may explain why the Court has repeatedly ducked this issue.
6. Finally, the Court might be prepared to set aside the doctrinal “injury in fact” analysis. Since this is my blog, let me offer my own preferred means of doing so: in cases without coercion or other traditional injuries in fact, the Court might afford standing to those persons with the greatest interest in bringing the claim. In Town of Greece, the challengers seemed to fit that bill. There are problems here, too, of course. Comparing potential claimants won’t always be easy; and the Court has said that standing can remove entire issues from the federal courts, thereby excluding even “best” plaintiffs. Still, the justices sometimes seem to follow this basic approach, and even say so. If you’re curious to read more, here’s a link to my article, “Relative Standing.”
Which answer is best? Are there others?
Shortly after posting the above, I decided to add a separate discussion of municipal taxpayer standing, now at #2.