Standing a Little Bit Above the Rest: Establishment Clause Enforcement & Taxpayer Standing after Winn

Abstract

This paper joins the ongoing dialogue about the relationship between the Establishment Clause and Article III, and particularly the Supreme Court’s narrow expansion of standing for such claims. The paper first suggests that the Establishment Clause recognizes both individual rights-based harms as well as a structural restraint, which like other structural constitutional provisions may not result in individualized harm. It then tracks the creation and preservation of limited taxpayer standing that the Court has permitted for the Establishment Clause, including the Court's most recent decision in Arizona Christian School Tuition Org. v. Winn. Finally, after exploring scholarly views on judicial enforcement of the Establishment Clause and considering whether full judicial enforcement of the Establishment Clause is necessary, and if so, whether it would be possible while respecting the boundaries of Article III, the paper concludes with some reflections on the future of taxpayer standing.