Hastings Law Journal Volume 32 | Issue 4 Article 9 1-1981 Americans United for Separation of Church and State, Inc. v. HEW: Standing to Sue under the Establishment Clause Laury M. Frieber Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Laury M. Frieber, Americans United for Separation of Church and State, Inc. v. HEW: Standing to Sue under the Establishment Clause, 32 Hastings L.J. 975 (1981). Available at: https://repository.uchastings.edu/hastings_law_journal/vol32/iss4/9 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. Americans United for Separation of Church and State, Inc. v. HEW: Standing to Sue Under the Establishment Clause By Laury M. Frieber* In Americans United for Separation of Church and State, Inc. v. HEW,1 the Third Circuit recently held that an organization devoted to the principle of separation of church and state2 and four of its members have standing to challenge a government ac- tion allegedly violative of the establishment clause of the first amendment.3 Americans United marks a significant expansion at the circuit court level of the doctrine of standing to sue for redress of constitutional injury. The definition of injury in fact, an indis- pensible element of federil standing, was extended to include an "individuated injury' 4 resulting from an abridgement of a citizen's right--"protected by the Establishment Clause of the First Amendment-to a government that does not establish religion. ' 5 * A.B., 1979, University of California, Berkeley. Member, Second Year Class. 1. 619 F.2d 252 (3rd Cir. 1980), cert. granted, 49 U.S.L.W. 3596 (1981). Because the government did not join in the petition for certiorari, the petition was granted under the name Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. This Note refers to the case by its earlier name, Americans United for Separation of Church and State, Inc. v. HEW. 2. Americans United for Separation of Church and State (Americans United) is a non- profit organization, incorporated in the District of Columbia, with a national membership of over 90,000. Its stated purpose is to "defend, maintain, promote religious liberty and the constitutional principle of separation of church and state." Brief for Appellant at 3, Ameri- cans United for Separation of Church and State, Inc. v. HEW, 619 F.2d 252 (3rd Cir. 1980), cert. granted, 49 U.S.L.W. 3596 (1981). 3. "Congress shall make no law respecting an establishment of religion. ." U.S. CONST. amend. I. 4. 619 F.2d at 254. 5. Id. For an introduction to the establishment clause, see generally: M. HowE, THE GARDEN AND THE WILDERNESS (1965); P. KAUPER, RELIGION AND THE CONSTITUTION (1964); P. KURLAND, RELIGION AND THE LAw OF CHURCH AND STATE AND THE SUPREME COURT (1962); L. PFEFFER, CHURCH, STATE AND FREEDOM (1967 ed.); A. STOKES & L. PFEFFER, CHURCH AND STATE IN THE UNITED STATES (1964); A. SUrHERLAND, THE CHURCH SHALL BE FREE 20 (1965); Choper, The Establishment Clause and Aid to ParochialSchools, 56 CALIF. L. Rzv. 260 (1968); Freund, Public Aid to ParochialSchools, 82 HARv. L. Rav. 1680 (1969); Giannella, [9751 THE HASTINGS LAW JOURNAL [Vol. 32 Such individuated injury, in the absence of either an economic in- jury to the plaintiff asserting taxpayer status6 or a particular im- pact7 upon the complaining citizen as differentiated from the "pol- ity as a whole" 8 provides a new judicial gloss to the injury in fact requirement of standing to sue under the establishment clause. This Note analyzes the court's decision in Americans United and demonstrates its importance as a significant departure in the law of establishment clause standing. To this end, the Note exam- ines the doctrine of standing and compares the facts and holding of Americans United with the facts and holding of significant standing decisions that have preceded it. The Note next discusses the implications of finding constitutional injury in fact 9 absent an impact on the individual that is differentiable from the abstract injury suffered by all citizens when the government acts in viola- tion of the Constitution. 0 The Note concludes that the decision in Americans United redefines injury in fact in a manner that is in- consistent with precedent, and suggests an expansion of taxpayer standing as an alternative approach to a grant of standing in the case. Standing to Sue The doctrine of standing" has been labeled a "complicated Religious Liberty, Nonestablishment, and DoctrinalDevelopment: PartIL The Nonestab- lishment Principle, 81 HARv. L. REV. 513, 516-26 (1968). 6. See notes 40-50 & accompanying text infra. 7. See notes 53-64 & accompanying text infra. 8. L. TRIBE, AMERICAN CONsTrruTiONAL LAW § 3-19, at 85 (1978) [hereinafter cited as TRME]. 9. It is possible that "direct injury" in Americans United could have been demon- strated by other classes of plaintiffs with adherence to more orthodox notions of injury in fact. See text accompanying notes 168-72 infra. 10. The Americans United plaintiffs are distinguishable from the public at large only by their special concern for the establishment clause and their willingness to expend time and financial resources to litigate the issue. 11. The following works are suggested as an introduction to the doctrine of standing:. Hearings on S. 2097 Before the Subcomm. on ConstitutionalRights of the Senate Judici- ary Comm., 89th Cong., 2d Sess. (1966) [hereinafter cited as Judiciary Comm. Hearings];K. DAvis, ADMINISTRATV LAW OF THE SEVENTIES §§ 22.00-.21 (1976); K. DAVIs, ADMImSTRATIVE LAW: CASES-TEXT-PROBLEMS 84-88 (5th ed. 1973); 3 K. DAVIs, ADMINISTRATIVE LAW TREA- TISE §§ 22.01-.18 (1950 & Supp. 1970); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE Ac- TION 459-545 (1965); Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816 (1969); Brilmayer, A Reply, 93 HARv. L. REv. 1727 (1980); Brilmayer, The Jurisprudenceof Article III: Perspectives on the Case or Controversy Re- quirement, 93 HARV. L. REV. 297 (1979) [hereinafter cited as Brilmayer]; Davis, The Liber- March 1981] ESTABLISHMENT CLAUSE STANDING specialty of federal jurisdiction"12 and "among the most amor- phous concepts in the entire domain of public law." s The seed of the doctrine is found in article HI of the Constitution, which limits federal jurisdiction to "cases" and "controversies."" Although the alized Law of Standing, 37 U. Cm. L. REV. 450 (1970); Davis, Standing: Taxpayers and Others, 35 U. Cm. L. REv. 601 (1968) [hereinafter cited as Davis]; Davis, Standing to Chal- lenge Governmental Action, 39 MINN. L. REV. 353 (1955); Jaffe, Comment: Standing Again, 84 HARv. L. Rav. 633 (1971); Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or IdeologicalPlaintiff, 116 U. PA. L. REv. 1033 (1968); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HAnv. L. Rav. 255 (1961); Jaffe, Standing to Secure JudicialReview: Public Actions, 74 HARv. L. REv. 1265 (1961); Scott, Standing in the Supreme Court-A Functional Analysis, 86 HI-Rv. L. REV. 645 (1973); Tushnet, The Sociology of Article III A Response to ProfessorBrilmayer, 93 HARv. L. REV. 1698 (1980). 12. C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL CouRTS § 13, at 42-43 (3d ed. 1976). Professor Tribe points out that the issue of whether state courts must limit federal question standing to the standards set forth by the federal courts has "long been the subject of confusion." TRIBE, supra note 8, § 3-18, at 81. Professor Tribe favors the view that "fed- eral standing requirements, whether dictated by article III or suggested by policy, all arise out of institutional concerns peculiar to the federal judiciary and its special role and are therefore irrelevant to the question of what more generous standing rules a state may adopt if it chooses to do so." Id. (footnote omitted). In support of this position, Professor Tribe cites Doremus v. Board of Educ., 342 U.S. 429 (1952), where the Court did not vacate the judgment at issue but merely dismissed the appeal for failure to meet the requisite federal standing requirements, which were more stringent than the standing requirements of the state court. In Doremus, the Court stated: "We do not undertake to say that a state court may not render an opinion on a federal constitutional question even under such circum- stances that can be regarded only as advisory. But, because our own jurisdiction is cast in terms of 'case or controversy,' we cannot accept as the basis for review, nor as the basis for conclusive disposition of an issue of federal law without review, any procedure which does not constitute such." Id. at 434. 13. Judiciary Comm. Hearings, supra note 11, at 498 (statement of Professor Paul Freund). The question of standing is an inquiry that generally arises in the context of chal- lenges to official acts, particularly those of the federal government. Private litigation, on the other hand, is of a nature clearly meeting the tests of justiciability. Thus, "[t]he main body of law on 'case or controversy' comes from cases raising questions of constitutionality of statutes, or cases seeking judicial review of administrative action." C. WRIGHT, HANDBOOK OF ma LAW OF FEDERAL CouRTS § 12, at 39 (3d ed. 1976). 14. "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls:--to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Sub- jects." U.S.