Victory for prayer in Jesus name?

[Christopher C. Lund]

Let me draw attention to Judge DeMoss's concurrence.  Judge DeMoss boldly took on the Supreme Court's standing jurisprudence directly, saying that the Court "cannot continue to hold expressly that the injury in fact requirement is no different for Establishment Clause cases, while it implicitly assumes standing in cases where the alleged injury, in a non-Establishment Clause case, would not get the plaintiff into the courthouse. This double standard must be corrected because . . . it opens the courts' doors to a group of plaintiffs who have no complaint other than they dislike any government reference to God."
 
Judge DeMoss continued:
 
"On the basis of the stipulations before us in this case, I would find these facts helpful in evaluating injury in fact: this prayer practice has existed for thirty years, the school board does not specify or approve the contents of any prayer or invocation in advance, and in giving the prayer or invocation, the speaker does not purport to speak for, or on behalf of, the school board.  In my view, the fact that the Does 'take offense' to this prayer practice should not constitute an injury in fact for standing purposes."
 
With respect to Judge DeMoss, I have trouble with this standing analysis.  All of the facts in the above paragraph certainly go to whether there is a constitutional violation.  But they should be irrelevant to standing.  None of these facts he cites are about these plaintiffs or their potential standing.  Judge DeMoss is really saying that there isn't (or shouldn't be) a constitutional violation here, and thus no one has suffered an "injury in fact," and thus no one has standing to sue.
 
This comes up often in passive display cases.  The defendant argues that a passive display is constitutional, and then also throws the argument into the standing section of the brief as well -- arguing that merely seeing a display simply isn't, as a categorical matter, enough to create an "injury in fact."  But this is just a disagreement with the Court's current interpretation of the Establishment Clause; it really isn't about standing at all.
 
Chris
 
 



From: ArtSpitzer at aol.comDate: Mon, 30 Jul 2007 17:46:03 -0400Subject: Re: Victory for prayer in Jesus name?To: religionlaw at lists.ucla.eduChaplain Klingenschmitt was well advised to put a question mark in his subject line.  Last week's CA5 decision does not uphold the constitutionality of the school board's practice.  Rather, the case (DOE v. TANGIPAHOA PARISH SCHOOL BOARD, No. 05-30294 (July 25)) was dismissed because the plaintiffs had neglected to put in the record any evidence that they had attended a school board meeting and had been exposed to the challenged prayers; therefore they had not demonstrated that they had standing to sue.  Any person who has attended a school board meeting and has been exposed to the challenged prayers remains free to file a new lawsuit, where the constitutionality of the practice will be an open question.  Indeed, the court stated "it is not hard to conceive that a more concrete controversy may arise in the future."  Whether this decision is "worthy of celebration and wide-spread publicity" I leave to the good chaplain's judgment.Art SpitzerACLU of the National Capital AreaWashington DCIn a message dated 7/30/07 5:22:49 PM, chaplaingate at yahoo.com writes:

ACLU just lost their case against prayer in Jesus name by Louisiana school board. http://www.christianpost.com/article/20070727/28638_Judges_Overturn_Ban_on_School_Board_Prayer.htm This victory by ADF is worthy of celebration and wide-spread publicity.**************************************Get a sneak peek of the all-new AOL at http://discover.aol.com/memed/aolcom30tour 
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