Perhaps I'm missing something here, but I thought that Flast was
limited to taxpayer lawsuits based on the spending of money pursuant to a
legislative authorization. See especially Hein, but also Valley Forge. Does
it really stand for the broader proposition that any citizen of a state has
standing to sue based on the very existence of a statute that endorses or
disapproves of religion? I would have thought not, but I'd love to hear what
others have to say - again, about what standing law currently is, not what it
should be.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, November 09, 2010 2:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: TRO against Oklahoma "no use of Sharia Law"
Flast v Cohen.
State taxpayer standing is different from federal--broader. Crampton v
Zabriskie
This law is the epitome of one where broad standing should be allowed because
of the obvious establishment issues raised and the clear discrimination against
some law on a religious basis. It is not merely "in god we trust" on money.
But perhaps I was a bit flippant in my response. It should be the simplest
standing case for injury by someone in the state. But, since it is not taxing
and spending, it might not be so simple for this court.
It is not a monument case. Nor is it like money cases and so on. It is
targeting a specific religion for negative treatment. But, as I noted in my
prior post, their is a possibility of someone actually having standing in the
more traditional sense of particularized individual injury by application of
the law, and the court could (to its discredit) allow the state to enact and
have on its books such a law unchallenged and unchallengeable for decades until
exactly the right case comes along.
Steve
On Nov 9, 2010, at 5:11 PM, Volokh, Eugene wrote:
I'm not sure whether Prof. Jamar is making a point about what
standing law should be, or what it is now. But as to the latter, as best I can
tell, the Court has never held that anyone has standing to challenge a law just
because the law itself endorses or disapproves of a religion. And Newdow v.
Levefre (9th Cir. 2010),
http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold
that there is no standing in such cases:
Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes "In
God We Trust" is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which
provide for the placement of the motto on currency], § 302 does not authorize
or require the inscription of the motto on any object. Without §§ 5112 and
5114, the motto would not appear on coins and currency, and Newdow would lack
the "unwelcome direct contact" with the motto that gives rise to his
injury-in-fact. Although Newdow alleges the national motto turns Atheists into
political outsiders and inflicts a stigmatic injury upon them, an "abstract
stigmatic injury" resulting from such outsider status is insufficient to confer
standing.
Other lower court cases recognizing standing to challenge monuments, city
seals, and the like have likewise all stressed the objectors' "frequent regular
contact" with the offending inscriptions and symbols. Or am I missing
something here?
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, November 09, 2010 2:04 PM
To: Law & Religion issues for Law Academics
Subject: Re: TRO against Oklahoma "no use of Sharia Law"
Simplest establishment standing case ever. Disfavoring one religion is an
establishment violation -- that gives anyone standing. Of course the current
court could change the rules and restrict standing in this area as they have in
others. Since it is at least theoretically possible that someone in Oklahoma
could suffer actual harm from this provision (enforcement of an internationally
valid Will which is compliant with Hanafi or Shafai or Wahabi or other schools
of Islamic jurisprudence, for example), the court could use this to trim
establishment claim standing.
On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote:
I thought I'd ask list members what they thought about this. Here's my post on
the subject, in case it's of interest - I'd love to hear whether others on the
list agree.
http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment
--
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice
http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
"Never doubt that the work of a small group of thoughtful, committed citizens
can change the world. Indeed, it's the only thing that ever has."
Margaret Meade
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--
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice
http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
"Years ago my mother used to say to me... 'In this world Elwood' ... She always
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh
So Pleasant.' Well for years I was smart -- I recommend pleasant. You may
quote me." --Elwood P. Dowd
- Mary Chase, "Harvey", 1950
_______________________________________________
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