More or Less Bunk: The Establishment Clause Answers That History Doesn't Provide

Brigham Young University Law Review, Feb 6/Feb 7, 2004 by Gey, Steven G

14. Id. at 1451 n.224.

15. Id. at 1393 n.20.

16. Id. at 1547-51.

17. Id. at 1559-61 & nn.634-38.

18. Id. at 1561-62.

19. Id. at 1564-66.

20. Id.

21. See id. at 1456 & n.239.

22. Id. at 1583.

23. Id. at 1483.

24. Id. at 1533-34 & n.539.

25. Id. at 1504 n.417.

26. Id. at 1527.

27. Id. at 1550.

28. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 728 (Fred B. Rothman & Co. 1991) (1833).

29. Esbeck, supra note 5, at 1393.

30. Id. at 1579-80.

31. Id. at 1584-85.

32. Id.

33. Id. at 1586.

34. Id. at 1389 n.9.

35. Id. at 1393 n.20.

36. A structural interpretation of the Establishment Clause may cause procedural enforcement problems in two respects. First, the Supreme Court has recently become reluctant to infer private rights of action from structural legal provisions. See Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (refusing to infer a private right of action from the federal Family Educational Rights and Privacy Act); Alexander v. Sandoval, 532 U.S. 275 (2001) (refusing to infer a private right of action to enforce Title VI of the 1964 Civil Rights Act). Although these cases involved statutes rather than constitutional provisions, they cast some doubt on older precedents in which the Court expressed a willingness to infer individual rights from structural constitutional provisions such as the Commerce Clause. See Dennis v. Higgins, 498 U.S. 439 (1991) (inferring a private right of action from the Commerce Clause). In a possible indication of things to come, the Court recently refused to extend the implied constitutional remedy originally promulgated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (allowing private suits for damages against federal agents who allegedly violate a citizen's constitutional rights), to suits against private actors who allegedly violate the Constitution while operating under color of federal law. Correctional Serv's Corp. v. Malesko, 534 U.S. 61 (2001). In his concurring opinion, Justice Scalia underscored the Court's more restrictive modern view of implied rights of action:

Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action-decreeing them to be "implied" by the mere existence of a statutory or constitutional prohibition. As the Court points out, we have abandoned that power to invent "implications" in the statutory field. There is even greater reason to abandon it in the constitutional field, since an "implication" imagined in the Constitution can presumably not even be repudiated by Congress.

Id. at 75 (Scalia, J., concurring) (citations and internal cross-references omitted).

A second way in which Professor Esbeck's interpretation of the Establishment Clause may implicate the ability to enforce that clause is through the standing doctrine. An overemphasis on the structural operation of the Establishment Clause, to the exclusion of the individual rights implications of that clause, may lead the Court to consider all individual efforts to enforce the provision as generalized grievances, which would fail to satisfy the Article III cases and controversies requirement. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) (holding that an attempt to enforce the Incompatibility Clause was a generalized grievance); United States v. Richardson, 418 U.S. 166 (1974) (holding that an attempt to enforce the constitutional requirement of a regular statement and account of government expenditures was a generalized grievance). Although Establishment Clause challenges involving the expenditure of government money for religious purposes may circumvent the generalized grievance problem via the taxpayer standing mechanism, see Flast v. Cohen, 392 U.S. 83 (1968), it is not always simple to identify the financing nexus that is a necessary component of that standard, see, e.g., Alabama Freethought Ass'n v. Moore, 893 F. Supp. 1522 (N.D. Ala. 1995) (denying taxpayer-standing status to plaintiffs who failed to show that the government spent money purchasing or maintaining a Ten Commandments plaque hanging in a state courtroom).