How Does the Supreme Court Feel About Feelings?
In multiple decisions blocking President Donald Trump’s executive order on immigration from six majority Muslim countries, courts have said that Muslim Americans could sue because the order sent a message that their religion was disfavored -- a violation of the U.S. Constitution’s establishment clause.
But last week an appeals court held that gay and transgender plaintiffs could not sue under the establishment clause to challenge a Mississippi law that they say sends them a similar message of marginalization based on religion.
The U.S. Supreme Court is going to have to weigh in to decide once and for all the parameters for when you can go to court and allege that the government has violated your rights by endorsing a religion. Underlying its eventual decision is the question: To what extent does the Constitution protect feelings?
There are basically two ways to get standing -- roughly, the constitutional right to have your day in court -- under the establishment clause.
The first is relevant when the government is spending money. Under a 1968 precedent, taxpayers have standing to challenge government expenditures that establish religion. That precedent has been narrowed over the years to include only direct spending, but it is still on the books. It derives from the framers’ idea that the government violates your right to liberty of conscience when it spends your money on a religious purpose with which you disagree.
The second way to get standing comes from Justice Sandra Day O’Connor’s “endorsement test” theory of the establishment clause, invented in the 1980s. Under the endorsement approach, the government violates the establishment clause when it sends a message to some people that, based on religion, they are outsiders, disfavored members of the political community, and a message to others that they are favored insiders.
In cases involving religious displays and symbols on public property, you can get standing through the endorsement test simply by having seen the symbol. The Supreme Court requires “concrete” harm for constitutional standing. And the experience of being sent the message counts as concrete.
That may seem strange or surprising -- because it means that concrete harm comes from hurt feelings. Certainly when I started studying the establishment clause 20 years ago, it seemed problematic to me that a constitutional right would depend on such a subjective feeling.
But since then, O’Connor’s endorsement approach has become fundamental to the establishment clause. And if we take seriously the idea that the Constitution prohibits sending a message of exclusion, receiving the message must logically be a concrete harm.
Meanwhile, cultural beliefs about what counts as meaningful harm have also evolved. Today as a society we are more open to accepting and recognizing the consequences of symbolic marginalization.
All this brings us to the contradiction between the cases involving Trump’s travel ban and the Mississippi case -- a contradiction the justices will have to resolve soon.
When Muslim Americans challenged the travel ban, their claim rested in large part on the idea that they were suffering concrete harm from the mere fact that the president had sent them a message of exclusion. As citizens, Muslim Americans themselves are not kept out of the country. Plaintiffs challenging the ban have pointed out that they might be separated from loved ones, but that harm hasn’t occurred yet, and so might be considered speculative by the Supreme Court. In contrast, the harm of exclusion is immediate -- and concrete.
That’s essentially what the plaintiffs are claiming in the Mississippi case. Mississippi House Bill 1523, they allege, violates the establishment of religion by endorsing certain religious beliefs. The law singles out three specific religious beliefs for special positive treatment: that marriage is “or should be” between one man and one woman; that sex should be reserved to marriage; and that male and female refer to “immutable biological sex.” 1
According to the plaintiffs, the very fact of the state’s enactment of H.B. 1523 sent them a message that they are disfavored members of the political community because they do not share these religious beliefs. And as gay or transgender people, they say, they are further harmed by the state’s endorsement of religious beliefs that deny their human dignity.
Structurally, the Mississippi plaintiffs’ claim to be able to sue is just like that of the Muslim Americans challenging the travel ban. Yet the U.S. Court of Appeals for the 5th Circuit denied them standing under the establishment clause. It held that the plaintiffs had not “encountered” a symbol or event that concretely harmed them.
That’s surely wrong as a matter of applied constitutional law. When the state legislature debates and passes a law, and the governor signs it, that’s a symbolic event to be encountered, every bit as much as the erection of a cross -- or the announcement by the president of an executive order.
It makes no sense to distinguish physical symbols of exclusion from legal symbols. Indeed, if anything the enactment of legislation fits O’Connor’s concerns about a government message more precisely than a cross would. The archetypal way the government sends messages is by passing laws.
When the Supreme Court justices address this problem, as they must, they will have to grapple with the reality that the endorsement test makes constitutional rights depend in part on feelings. The message can still be viewed as “objective” in the way lawyers think about that word, defined as what a reasonable person would feel when hearing it. But the experiential component is still there, and so is the experience of the person who feels it.
The endorsement test was a new direction for the establishment clause. Now that it is firmly part of constitutional law, the law of standing must take it into account -- and treat it with respect.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Disclosure: I raised a version of this argument in a column, which was subsequently cited by the plaintiffs in their briefs; I also discussed the legal issues with plaintiffs’ counsel after I had written about the issue.
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