The ACLU’s perennial lawsuits attacking our nation’s religious heritage are backfiring, and that’s something for which you can give thanks this year.
An important—and, until recently, overlooked—constitutional requirement called “standing” is thwarting those attacks. Two federal appellate courts said “enough” and have recently thrown out ACLU lawsuits brought to stop prayer before the Indiana Legislature and a school board in Louisiana because the ACLU’s clients had suffered no harm—that is, they “lacked standing” to bring a lawsuit in the first place. So, rulings on “standing” are now protecting public prayer.
The obscure doctrine of “standing” means that federal courts cannot hear a lawsuit unless the person bringing it has suffered some concrete injury by the hand of the government, and the federal courts can do something to remedy that harm. The Constitution itself in Article III imposes these standing requirements on everyone bringing a lawsuit in federal court.
For decades, the ACLU has convinced federal courts to ignore these rules of standing when it brings its extreme lawsuits to eradicate the posting the Ten Commandments in city hall, to censor the singing of Christmas carols in the public schools, or to stop a school board meeting from opening in prayer. The ACLU locates the village atheist, and files a lawsuit on his behalf, asking the federal court to stop the practice because it allegedly violates the so-called “separation of church and state” in the Establishment Clause of the First Amendment.
But the village atheist has suffered no “concrete injury.” So years ago, the ACLU and its secularist allies bamboozled the courts into ignoring the general rules of standing for lawsuits in their cases and permitting lawsuits brought by “offended observers” of a religious display or prayer or by “taxpayers” who had contributed financially to the allegedly unconstitutional governmental act, no matter how little their contribution.
The federal courts do not allow lawsuits by “offended observers” or “taxpayers” in any other area of law. Someone offended by government signs stating “Support the War In Iraq,” “Say No To Drugs,” or “Pay Taxes Here” cannot go to court for an order censoring those signs. The fact that they may have paid taxes to make those signs does not mean they have suffered a “concrete injury” that gets them into the federal courthouse.
The ACLU and its allies have been getting away with this for decades. Representing clients that have experienced no real harm, they have succeeded in eliminating ceremonies and other practices mentioning God and our nation’s dependence on Him, some of which date back to before the founding of our Republic. But finally the courts are waking up. They are imposing the standing rules across the board and rejecting these lawsuits until the ACLU finds someone who has actually been harmed by the government’s actions.
For example, on October 30, the federal appeals court for Indiana, the 7th Circuit, threw out a lawsuit by the local branch of the ACLU that challenged the tradition of the Indiana Legislature to open its sessions with invocations by local clergymen. The ACLU assembled “taxpayers” to challenge the practice. The 7th Circuit ruled that “they have not shown that the legislature has extracted from them tax dollars for the establishment and implementation of a program that violates the Establishment Clause.” The Supreme Court last spring also rejected taxpayer standing for the Freedom From Religion Foundation, who wanted to challenge a White House conference where nothing religious happened. The atheist group claimed that government officials would violate the Establishment Clause by merely urging faith-based groups to apply for federal grants to conduct programs to help the poor.
In July, the federal appeals court for Louisiana, the 5th Circuit, rejected a lawsuit by the ACLU, which represented “offended observers” who challenged the practice of the Tangipahoa Parish School Board to open its meetings with prayer. The ACLU claims it forgot to mention in its legal pleadings that its clients had attended the meetings when there was prayer. Oops! It’s kind of hard to be offended by the prayers when you aren’t even present to hear them. The federal appeals court rightly dismissed the lawsuit with such a cotton candy foundation.
New enforcement of the requirement that the ACLU bring clients to court who have standing–that is, who have actually been injured by the government’s actions–will not totally stop the extreme lawsuits. But if the ACLU has difficulty finding people actually suffering from government actions that acknowledge America’s religious heritage, then maybe that says something about the validity of its assertions about what the Establishment Clause means.