Does it matter if the Establishment Clause protects the rights of individuals, or more broadly protects the structure and character of our government?  The travel ban cases have brought this question to the forefront of American constitutional consciousness.  Michael Dorf has touched on the concept of the Establishment Clause as a structural guarantee, but we think there is much more to be said, especially as this idea relates to standing in Establishment Clause cases. 

As we explain here, the Department of Justice’s recently filed brief in a case challenging the travel ban advances a number of profoundly incorrect claims in its assertion that the plaintiffs lack standing.  A deeper look at the Establishment Clause’s purposes reveals DOJ’s error and shows why the plaintiffs’ legal claims must be heard on the merits.  

The second Executive Order, promulgated March 6, 2017, which bans entry of persons from specified Muslim-majority countries, is currently facing litigation in Maryland, Virginia, and Hawaii.  District courts have entered nationwide preliminary injunctions in the Maryland and Hawaii cases, so enforcement of the ban is now on hold. DOJ has filed an appeal in both the Hawaii case and the Maryland case, International Refugee Assistance Project v. Trump (“IRAP”).  Appellate arguments in IRAP have been scheduled for May 8, and the U.S. Court of Appeals for the Fourth Circuit is considering the unusual move of initially hearing the case en banc—that is, with all judges of the Circuit involved.  Ordinarily, en banc review occurs only after a panel of three appellate judges hears the case—and even then, en banc review is rare. So IRAP seems headed on a fast track to the Supreme Court.

The individual plaintiffs in IRAP allege that each of them has family members whom the Order bars from entry to the U.S., and that each is experiencing “stress and anxiety” arising from the Order’s implication that they and other Muslims are unwelcome in the United States. The district court in IRAP ruled that the individual defendants in the case have standing to maintain the lawsuit based on federal immigration statutes as well as the Establishment Clause of the First Amendment, and ruled in their favor on both statutory and constitutional grounds.

A large conceptual question hovering over the travel ban litigation is whether the Establishment Clause protects only “rights” of Americans, or whether the Clause addresses the character of government independent of any particular claim of rights.  If the Clause is about government character, questions of its substantive scope and judicial enforceability take on a different flavor, one that invites a far broader range of litigation than might be the case under a provision that protects only rights. This explains why, in its opening Fourth Circuit brief in IRAP, DOJ frames standing issues and the merits in terms of individual rights. DOJ’s brief argues that the plaintiffs’ overseas relatives “do not possess Establishment Clause rights.” In addition, DOJ asserts that the plaintiffs’ objections to the Order do not constitute the sort of injury that support standing to sue.

As an attempt to save the Order, DOJ’s framing makes tactical sense.  But this line of argument reflects a fundamental misunderstanding of the Establishment Clause.  Unlike other rights-granting provisions in the Constitution, the Establishment Clause prohibits a range of government actions that do not necessarily impose concrete harms on identifiable individuals.  Of course, the Clause’s protections do extend to government actions directly burdening rights; for example, it would violate the Clause if Congress enacted a law declaring Methodism the official religion of the United States and requiring everyone to attend weekly worship services at state-approved churches. Such a law would obviously burden rights protected by the Establishment Clause, as well as the Free Exercise Clause.  But the Establishment Clause also operates as a structural limit that forbids governmental actions that endorse or denigrate a particular faith, even when those actions do not operate coercively against individuals.

For example, it would violate the Clause for the government to drape the Capitol Building with a large banner proclaiming “Accept Jesus as Your Savior,” even if no bystander felt compelled to change her faith in response. Likewise, it would violate the Establishment Clause if the President issued an Executive Order declaring that Roman Catholicism is a heretical perversion of true Christianity, and directing that the Order be read at the opening of all official federal agency meetings, even if no Catholic suffered any tangible harm from the issuance or implementation of the declaration.  Engel v. Vitale, the first school prayer decision, illustrates this quality of the prohibition on religious establishment.  In Engel, the Court held that public authorship and sponsorship of the New York State Regents Prayer violated the Constitution, irrespective of whether any school children were coerced to recite the Prayer.

In light of this distinctive characteristic of the Establishment Clause, it is not difficult to see why most courts reviewing challenges to the travel bans have concluded that both versions of Trump’s policy violate the Clause. Those courts have correctly reasoned that a government purpose to exclude adherents of a specific religion renders an otherwise facially neutral immigration policy impermissible under the Establishment Clause. Crucially, this is true even if those persons otherwise have no individual right to enter the United States.

The Supreme Court has long recognized that the rules for standing in Establishment Clause cases must reflect the distinctive character of the Clause itself.  The Court ruled in Flast v. Cohen that taxpayers may sue to block expenditures that support religion, even though taxpayers generally lack standing to sue to block other unconstitutional expenditures. Similarly, the Court has held that observers of allegedly unconstitutional religious displays have standing to challenge them, even though mere observers of other unconstitutional actions—for example, a cruel and unusual punishment, or a manifestly unfair trial—would not have standing to challenge them in court. To be sure, the Court in recent years has adopted a more limited interpretation of taxpayer standing.  But the Court has expressly declined to overrule Flast v. Cohen, and it has never cast any serious doubt on theories of observer standing.

These distinctive rules for standing in Establishment Clause cases reflect the ways that such claims differ from other constitutional claims. When the government transgresses other constitutional norms, ordinarily there are individual or institutional actors who are materially injured by the government action, and they can be expected to vindicate their rights in litigation.  This is even true for other structural limits on government power, such as the separation of powers between Congress and the President, and federalism-based constraints on Congress’s authority to legislate.

But matters are often different under the Establishment Clause.  Because the government can violate the Clause with actions that do not impose penalties or deny governmental benefits, there would frequently be no one with standing under conventional standing norms to challenge such actions. The principal justification for distinctive standing rules under the Establishment Clause is functional—the government is unlikely to respect the constitutional limitations without an external monitor. 

In the Fourth Circuit case, and in others challenging President Trump’s travel bans, these standing rules should be dispositive.  In IRAP, the individual plaintiffs allege that each has a family member whom the Order bars from entry to the U.S., and that each is experiencing “stress and anxiety” arising from the Order’s denigration of Muslims as targets of suspicion. Whether or not such claims of injury are sufficient for standing to press other types of claims, the more capacious doctrine under the Establishment Clause should permit standing here. These plaintiffs suffer concrete personal injury through interference with their relationships with foreign relatives. And, more to the essence of the Establishment Clause’s purposes, these plaintiffs have standing because their faith has been stigmatized and its members have been made the victims of faith-based discrimination.

The government contends that recognizing standing for these plaintiffs would effectively open the door to standing for any Muslim in the United States to raise an Establishment Clause challenge to the travel ban. But recognizing relaxed standing rules is not the same thing as eliminating such rules altogether. In cases that involve observer standing, for example, it is not enough for a plaintiff to contend that she is offended by the mere existence of the government’s religious display, such as a public monument of the Ten Commandments.  Instead, the plaintiff must demonstrate that she is likely to view the display in the course of her daily activities.  The plaintiff’s experience with the display distinguishes her from others who might share her objection to government-sponsored religious monuments but who have no contact with the challenged monument.

The Establishment Clause claim in IRAP can be fruitfully compared to the claims in cases involving religious displays. In such cases, the core Establishment Clause contention is that the government has impermissibly favored the religion reflected in the display. Implicit in those claims is that the government, in favoring one religion, has effectively disfavored all other religions—and those who adhere to no religion. In challenges to the travel ban, the Establishment Clause claim is that the government has denigrated one religion by subjecting its adherents to greater scrutiny upon entry to the U.S. than that faced by persons from other religious backgrounds. In other words, the travel ban violates the Establishment Clause by directly—and not merely by implication—disfavoring adherents of a particular faith.

In IRAP, the plaintiffs allege that they have family members who are excluded from entry to the United States by the travel ban.  If walking past a religious monument on public property is a sufficient injury for standing in an Establishment Clause case, then separation from loved ones must be enough. Thus, the plaintiffs experience a concrete personal injury, for purposes of standing to bring an Establishment Clause claim, as well as the experience of group-based religious insult.

Once the standing issues are resolved, the court will be free to focus on the merits of the plaintiffs’ Establishment Clause claims. Many others—including Leah Litman, Michael Dorf, and Jonathan Taylor on Take Care, and Quinta Jurecic on Lawfare—have addressed those issues, and we do not elaborate them further here.  We simply note that the government’s true purpose indisputably matters in Establishment Clause challenges, and that “the world is not made brand new every morning”— even on the morning of January 20.  

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