The Need for “Establishment Clause Standing”

The National Review rightly flags another absurd lawsuit filed by American Atheists, here, to pull down the wrought iron cross just north of Ground Zero (to you culture war partisans, that’s two blocks south of the “Ground Zero Mosque”). The cross, remember, was discovered on the grounds of the former World Trade Center, and immediately became a part of the national cultural response to the tragedy. For Plaintiffs, this is (or should be) the problem: the cross isn’t a government attempt to inject religiosity into a secular event. It’s a government attempt to protect an artifact that, rightly or wrongly, merged with a historical event to become part of our shared heritage. That the artifact carries a Christian meaning is entirely insignificant. Just so, we wouldn’t pull down a plaque on Federal Hall, in the Financial District, simply because it happens to depict Washington kneeling in front of a cross, just before his inauguration. The Establishment Clause is not a weapon to be used to carve out a preferred historical narrative, and when liberal groups pretend it is, they muddle our message and cast doubt on legitimate First Amendment litigation efforts.

But NRO overreaches to argue that, despite the Establishment Clause, harms of the conscience in general should not be enough to get plaintiffs into court. Essentially, in their view, plaintiffs in an Establishment Clause case would have to point to a specific, personal harm. This is the baseline requirement for judicial standing in most cases — “offense” is generally not enough — but we’ve always tacitly acknowledged an exception where the Establishment Clause is concerned. NRO would erase that exception and, it’s important to note, functionally moot the Establishment Clause in the process. The Clause represents the private citizen’s only remedy, outside of the ballot box, for the government’s adoption of a religious message that forces him to choose between God and country. If such injuries of conscience no longer matter in the eyes of the law, the Establishment Clause becomes advisory only, and may be ignored at will.

If we’ve made an exception in Establishment Clause cases, it’s because the Founders did, too. Justice Souter gets it:

[T]he Framers were vividly familiar with efforts in the Colonies and, later, the States to impose general, nondenominational assessments and other incidents of ostensibly ecumenical establishments. The Virginia statute for religious freedom, written by Jefferson and sponsored by Madison, captured the separationist response to such measures. Condemning all establishments, however nonpreferentialist, the statute broadly guaranteed that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever,” including his own.

To the Founding generation, with the memory of war-torn Europe not far behind them, harms to the conscience were all too real. It’s that style of injury that conservatives mock today, and would set aside, despite 200 years of precedent and clear constitutional language. Such is tea party constitutionalism, willing to set a match to one of the Founders’ greatest legacies, just to shove their view of American society further down everyone’s throats.

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