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Supreme Court Limits Ability of ACLU and its Allies to File Lawsuits under the Establishment Clause

October 17, 2017

My colleague David Cortman posted a blog about the recent Supreme Court victory in ACSTO v. Winn.  As he points out, there are many great things to celebrate about that case.  I thought I would highlight one other positive development from that case.  For decades, we have been witnesses to an unprecedented assault on religion in the public square, aided by the Supreme Court who has allowed the ACLU and its allies to file lawsuits against anything the government does that in any way touches religion.  These case have removed prayer, Bible reading, and the Ten Commandments from schools, removed the Ten Commandments from courthouses across the nation, struck down prayer at school football games, prohibited religious involvement in government programs, invalidated aid to certain private schools simply because they might be religious, held unconstitutional scholarships that may be used for religious education, and the list goes on and on.  Suffice it to say that religion in the public square has taken quite a beating in the last several decades thanks to the ACLU and its allies.

The ACLU has gotten away with this because the Supreme Court has relaxed the "standing" rules to bring lawsuits under the Establishment Clause.  Put simply, a person must normally prove they are specifically and uniquely injured in some way in order to seek redress from the courts.  If a person only suffers an injury that is shared by all of society, then they are not suffering a particular injury that the court can remedy.  As an example, normally a person cannot sue the government and claim that the taxes he or she pays are being used inappropriately. The courts recognize that such a claim of harm is speculative and that the proper remedy for that claim lies in the legislature, not the courts.

Yet the Supreme Court created a broad and expansive standing doctrine under the Establishment Clause that allowed for the ACLU and its allies to essentially roam the country and file lawsuits against anything they saw that offended them.  That's why today we see lawsuits like those in Colorado and Wisconsin that challenge even our ability to engage in a National Day of Prayer.  It's why the ACLU felt it could challenge Arizona's school choice law.

The Supreme Court, though, in the ACSTO case seems to be saying that it has had enough of these kinds of frivolous and speculative lawsuits.  The ACLU and its allies in ACSTO were arguing that they were injured by the school choice program simply because some people in Arizona might choose to give money to a school tuition organization who would then possibly decide to give a scholarship to a student that might be used at a religious school; and then the people who originally gave the money might choose to avail themselves of a tax credit offered by the State of Arizona and, the people represented by the ACLU might have to pay more money in taxes as a result.  What a twisted, convoluted, and speculative logic!  But the Supreme Court thankfully saw just how twisted this line of reasoning was and held that there was no injury here and the ACLU and its allies had no standing to challenge the school choice law.

This was a positive development in the law.  Indeed, if we could step back and look at a possible developing trend, we would see that the Supreme Court seems to be cutting back on the ability of the ACLU and its allies to have standing to bring challenges under the Establishment Clause.  Just last year the Court decided a case called Hein v. Freedom From Religion Foundation where it held that the Freedom From Religion Foundation did not have standing to challenge expenditures by the Executive Branch of government that touch on religion.  The ACSTO case is another step in the right direction of limiting the ability of the ACLU and its allies to roam the country in search of what they perceive to be Establishment Clause violations and then file a lawsuit to have those invalidated.

The Supreme Court still has a long way to go to restore sanity to this area of the law.  For example, another way the Court has expanded the standing doctrine under the Establishment Clause is to allow people "offended observer" standing.  This allows groups like the ACLU to sue over Ten Commandment displays and the National Day of Prayer simply because they have to come into unwelcome contact with something that offends their religious (or agnostic) sensibilities.  The Court should do away with this doctrine like it seems to be doing away with taxpayer standing under the Establishment Clause.  ACSTO was a step in the right direction.  Let's pray that the Supreme Court continues this trend of undoing the great damage caused in the courts by the ACLU and its allies.


To read David Cortman's blog about the ACSTO v. Winn ruling, click here.

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