Let me draw attention to Judge DeMoss's concurrence. Judge DeMoss boldly took
on the Supreme Court's standing jurisprudence directly, saying that the Court
"cannot continue to hold expressly that the injury in fact requirement is no
different for Establishment Clause cases, while it implicitly assumes standing
in cases where the alleged injury, in a non-Establishment Clause case, would
not get the plaintiff into the courthouse. This double standard must be
corrected because . . . it opens the courts' doors to a group of plaintiffs who
have no complaint other than they dislike any government reference to God."
Judge DeMoss continued:
"On the basis of the stipulations before us in this case, I would find these
facts helpful in evaluating injury in fact: this prayer practice has existed
for thirty years, the school board does not specify or approve the contents of
any prayer or invocation in advance, and in giving the prayer or invocation,
the speaker does not purport to speak for, or on behalf of, the school board.
In my view, the fact that the Does 'take offense' to this prayer practice
should not constitute an injury in fact for standing purposes."
With respect to Judge DeMoss, I have trouble with this standing analysis. All
of the facts in the above paragraph certainly go to whether there is a
constitutional violation. But they should be irrelevant to standing. None of
these facts he cites are about these plaintiffs or their potential standing.
Judge DeMoss is really saying that there isn't (or shouldn't be) a
constitutional violation here, and thus no one has suffered an "injury in
fact," and thus no one has standing to sue.
This comes up often in passive display cases. The defendant argues that a
passive display is constitutional, and then also throws the argument into the
standing section of the brief as well -- arguing that merely seeing a display
simply isn't, as a categorical matter, enough to create an "injury in fact."
But this is just a disagreement with the Court's current interpretation of the
Establishment Clause; it really isn't about standing at all.
Chris
From: [EMAIL PROTECTED]: Mon, 30 Jul 2007 17:46:03 -0400Subject: Re: Victory
for prayer in Jesus name?To: [EMAIL PROTECTED] Klingenschmitt was well advised
to put a question mark in his subject line. Last week's CA5 decision does not
uphold the constitutionality of the school board's practice. Rather, the case
(DOE v. TANGIPAHOA PARISH SCHOOL BOARD, No. 05-30294 (July 25)) was dismissed
because the plaintiffs had neglected to put in the record any evidence that
they had attended a school board meeting and had been exposed to the challenged
prayers; therefore they had not demonstrated that they had standing to sue.
Any person who has attended a school board meeting and has been exposed to the
challenged prayers remains free to file a new lawsuit, where the
constitutionality of the practice will be an open question. Indeed, the court
stated "it is not hard to conceive that a more concrete controversy may arise
in the future." Whether this decision is "worthy of celebration and
wide-spread publicity" I leave to the good chaplain's judgment.Art SpitzerACLU
of the National Capital AreaWashington DCIn a message dated 7/30/07 5:22:49 PM,
[EMAIL PROTECTED] writes:
ACLU just lost their case against prayer in Jesus name by Louisiana school
board.
http://www.christianpost.com/article/20070727/28638_Judges_Overturn_Ban_on_School_Board_Prayer.htm
This victory by ADF is worthy of celebration and wide-spread
publicity.**************************************Get a sneak peek of the all-new
AOL at http://discover.aol.com/memed/aolcom30tour
_________________________________________________________________
Don't get caught with egg on your face. Play Chicktionary!
http://club.live.com/chicktionary.aspx?icid=chick_wlmailtextlink
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
