I'm inclined to think that Eugene's original post (no standing, no ripeness) is spot-on in this case. Maybe there is an argument that anyone who resides in Oklahoma has "frequent regular contact" with any principle in the Oklahoma Constitution, but I wouldn't buy it. (How would we distinguish this case from any other objection, based on insult, disparagement, or offense, to a constitutional provision? Perhaps standing would be OK in any such case -- suppose the voters declared the state to be a White Supremacist state?) I think the deeper problem here -- and the reason why we have so many anomalous standing doctrines in Establishment Clause law, like taxpayer standing and observer standing -- is that the Clause primarily stands for a polity principle, and not a rights-based principle. So, for example, if Oklahoma voters had approved a provision declaring the state to have a Christian identity, we'd all know that the incorporated Establishment Clause had been violated, but we'd have the same trouble finding a proper plaintiff (one who satisfied Art. III standards) to challenge it in a federal court.
Perhaps the Oklahoma state courts would be a more legally hospitable forum (though we would of course want to know more about re-elections or recall elections for state court judges in Oklahoma). Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ---- Original message ---- >Date: Tue, 9 Nov 2010 14:11:32 -0800 >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Volokh, Eugene" ><vol...@law.ucla.edu>) >Subject: RE: TRO against Oklahoma "no use of Sharia Law" >To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > > A A A A A A A A A A A A A A I'm not sure whether > Prof. Jamar is making a point about what standing > law should be, or what it is now.A 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.A 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. AS: > 302, which merely recognizes "In God We Trust" is > the national motto. Unlike AS:AS: 5112(d)(1) and > 5114(b) [which provide for the placement of the > motto on currency], AS: 302 does not authorize or > require the inscription of the motto on any object. > Without AS:AS: 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.A Or am I missing something here? > > A A A A A A A A A A A A A A Eugene > > > > From: 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 > > > > >________________ >_______________________________________________ >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. _______________________________________________ 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.
