Free Exercise Standing: Extra-Centrality As Injury in Fact

Authors

Brendan T. Beery

Document Type

Article

Abstract

(Excerpt)

Part I of this Article surveys standing doctrine generally and tackles the problem of psychic insult—what might fairly, in some cases, be characterized as hurt feelings—as an injury. Part II addresses the special problems of finding concrete and palpable injuries in religion cases, noting that it is more difficult to identify such injuries in Establishment Clause cases than in free exercise cases. When free exercise is viewed as dynamic and kinetic, free exercise injuries are discernible and concrete: they occur when a person is forced to participate in religious undertakings or express beliefs against his or her will, or when a person is forced to abstain from participating in religious undertakings or expressing his or her beliefs. When free exercise is viewed as prophylactic, on the other hand, the alleged injuries become much more ethereal and abstruse: a person may be injured, under this view, by a mere psychic insult.

Part III discusses why religious traditionalists, and particularly Christian conservatives in the United States, see extra-centrality as a concrete injury. It is in the nature of evangelism that non-adherents be evangelized; non-adherents are thus viewed as accessorial, and their participation in believers’ mission to correct and convert is therefore a component of believers’ free exercise of religion. This view of the believer as central and all others as accessorial engenders the perception of extra-centrality and irrelevance as injury. And of course the loss of power by conservative Christians may itself be experienced as a concrete and palpable injury. So too the tendency of Christians to see themselves as persecuted contributes to the perception of concrete and palpable injuries, even where secularists see mere governmental neutrality. Part IV explains why the coercion standard elucidated in Nikolao cannot likely survive a new paradigm under which a majority of the Justices on the Supreme Court take a prophylactic view of free exercise and regard the extra-centrality of traditional Judeo-Christian norms in American life as a concrete and palpable injury.