Measuring a “Spiritual Stake”: How to Determine Injury-in-Fact in Challenges to Public Displays of Religion

April 1, 2013

This Note analyzes the unique standing problem introduced by a particular set of Establishment Clause cases: those concerning nontaxpayer-based challenges to alleged “public displays” of religious symbols. This injury-in-fact problem arises due to the nature of the specific type of harm recognized by the U.S. Supreme Court in the context of religious displays: the public endorsement of religion. Due to this unusually subjective harm, it is unclear how the courts should evaluate this threshold injury-in-fact inquiry. This Note analyzes the legal conflict arising from the attempt to remain faithful to both the traditional injury-in-fact standing requirements and the endorsement test generally applied to the merits in Establishment Clause challenges. This Note interprets Supreme Court precedent and proposes a tailored, multifactor test, articulating a specific injury-in-fact burden for public display challengers. The proposed test attempts to take into account the entirety of the unique injury. In particular, this test considers the display in context, rather than as a mere “snapshot. ” This standard, while unique, is fully reconcilable with the Court’s current standing jurisprudence and addresses the various policy implications confronted by the lower courts.

April 2013

No. 5