I’ve been posting some of my rough drafts for a book I hope will be out this summer, tentatively titled “Have To” History: It Followed Her To School One Day… and with a subtitle longer than several of the actual chapters in my effort to clarify what it’s about right there on the cover while still being saucy. What started off as a one-pager for the case of Flast v. Cohen (1968) became a rambling summary of “standing” issues in church-state cases related to public education, which I’ve been sharing here as it develops.
There were just a whole lotta cases goin' on in the half-century following Flast, all of which seemed to deal with standing in a different way. Upon closer look, however, most were in fact faithful to the Court's odd reasoning in Flast... it's just that they used that consistency to mean whatever they needed it to mean at the moment.
In Flast, a group of taxpayers objected to the use of public funds to provide secular textbooks for sectarian schools. The government argued that based on established precedent, they had no standing to sue. The case, then, became about standing rather than the merits of their complaint. If they weren’t qualified to bring the suit to begin with, it didn’t really matter how right or wrong they were on substance.
Three Big Things:
1. To bring a case before any court, one must first establish “standing.” Typically this means proving specific individual harm resulting from the actions of another and demonstrating that the offending party has the power to change whatever’s causing the harm.
2. Being a taxpayer is rarely sufficient to prove standing in the courts to complain about how one’s tax dollars are being used, even if that use is clearly unconstitutional.
3. When it comes to violations of the Establishment Clause, however, unwanted exposure to the offense is often sufficient to show standing in the eyes of the law because, well… Establishment isn’t like anything else.