I agree with Christopher that the complaint about lack of injury in EC cases
goes more to substance than to standing. I am writing an article on Justice
Thomas and partial incorporation of the EC (EC incorporated not as a
structural limitation on the power of state govt, but only to the extent that
it protects individual liberty interests against substantial burdens or
deprivations) and here is an excerpt from a working draft of my article that
relates to some of what we have been discussing lately (footnotes omitted):
Although Justice OConnor has tried to explain the endorsement test as a rule
designed to protect an individuals right not to feel like an outsider or a
disfavored member of the political community, this view amounts to nothing more
than an unconvincing attempt to portray a structural limitation on state
government speech as a spurious right to censor public displays that one finds
offensive. Why should we think that liberty under the Establishment Clause
includes the right to control which holidays state governments may celebrate
and which ideas state governments may express? This is an extraordinary
liberty, unlike any other liberty incorporated by the Fourteenth Amendment.
For example, no one would argue that the Free Exercise Clause protects a
persons right to censor public displays that offend his sincerely held
religious beliefs. Thus, A does not have a First Amendment right to enjoin a
gay pride display in a public park because it offends his religious beliefs
and sends a message to him that he is an outsider and a disfavored member of
the political community. As remedy is to avoid the offensive display or to
avert his eye when walking past it. Similarly, B should not have a First
Amendment right to enjoin a Christmas display that she finds offensive. The
incorporated Establishment Clause protects individual liberty from substantial
burdens imposed by state action, but there is no liberty to not be offended by
government speech in the public square. Indeed, a rule cleansing religious
displays from the public square actually promotes the evil it seeks to avoid,
because by singling out religious displays for exclusion from the public
culture the Court is sending a message that people of faith are outsiders,
disfavored members of the political community whose holidays and ideas may not
be recognized and celebrated in a public square that includes everyone else. As
Steven Smith argues, if religious symbols and holidays are cleansed from the
public square, many religious citizens may feel that their most central values
and concernsand thus, in an important sense, they themselveshave been
excluded from a public culture devoted purely to secular concerns.
In order to succeed in an Establishment Clause case brought against state or
local government, the claimant should be required to demonstrate that the
challenged law or policy substantially burdens an individual liberty protected
under the Clause. The kind of psychic harm one experiences when government
endorses a controversial idea or symbol in the public schools or upon the
public square does not impose a substantial burden on an incorporated
Establishment Clause liberty, unless a dissenter is compelled to affirm his
belief in the offensive idea. If A has no right to forbid the teaching of
evolution in the public schools because that lesson is offensive to his
religious beliefs protected under the Free Exercise Clause, then B has no right
to forbid the teaching of intelligent design in the public schools because that
lesson is offensive to his liberty protected under the Establishment Clause.
Since the structural component of the Establishment Clause limiting the
power of the states to endorse or advance religion is not subject to
incorporation, the merits and wisdom of education in the public schools are for
school boards and state legislatorsnot federal judgesto determine, so long as
individual liberty under the First Amendment is not substantially burdened.
That is only a small excerpt of my piece on Thomas and partial incorporation,
but suffice it to say that I believe his views about incorporating the EC only
to the extent that it protects individual liberty against substantial
deprivations are very powerful and convincing.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
It's a funny thing about us human beings: not many of us doubt God's existence
and then start sinning. Most of us sin and then start doubting His existence.
--J. Budziszewski (The Revenge of Conscience)
Once again the ancient maxim is vindicated, that the perversion of the best
is the worst. -- Id.
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