The first part of this commentary provides a brief overview of established doctrine and describes the specific permanent principles relating to the establishment clause. Part II describes the current conflicting approaches between the courts below with respect to the enforceability of purely stigmatizing damages in the cases of the establishment clause, while Part III examines the Court`s historic standing decisions on the establishment clause. In addition, Part III clarifies the applicable principles contained in the Court`s precedents and explains how these principles have been obscured in cases of religious display and exercise by the lower courts. Part IV proposes a system of purely stigmatising establishment clauses which would bring the lower courts closer to the established principles of the Court of Justice. Under this rule, stigmatizing damages caused by an overtly religious conduct of a government are justiciable as long as the plaintiff belongs to the community affected by the government`s impugned conduct. It is a little more difficult to determine the relevant community to which the law applies. In a sense, one could assume that HB 1523 applies only to those it exempts from state anti-discrimination laws, and perhaps also to those who are denied services under the exemption. Under this interpretation, applicants for gay, lesbian and transsexual barbers would have standing because HB 1523 allows them to refuse services.142 But barber applicants also included many clergy and religious leaders who held religious beliefs contrary to those protected by HB 1523 and alleged stigmatizing harm to the message of the law. that would denigrate their religious beliefs.143 These complainants would be denied such a narrow view of the community concerned because the law does not directly affect them. The basis of this hypothesis is rather weak. First, the Court`s silence on standing does not make it possible to determine with certainty which theory of standing (if any) the Court has credited in obtaining the merits of its religious exhibition cases.

It is possible that the Court considered that the mere insult of a constitutional violation in the context of religious signage was recognizable and therefore supported the lower courts` exception to religious display. However, it is also possible that the Court relied on taxpayer harm, stigmatizing or other damages to establish standing;32 Since the Court did not consider the locus standi, this is mere conjecture. Second, it is a long-standing principle that “if a potential lack of jurisdiction is not established or discussed in a federal decision, the decision does not support the assumption that there was no deficiency.” 33Thus, the Court`s failure to deal with locus standi in its religious cases leaves open the possibility that the applicants did not actually have standing in those cases. 1. Schempp: Presumption of enforceability of stigmatizing damages. Read in its original context, Schemppand Valley Forge points out the following rule: While the mere insult to the government`s breach of the establishment clause is not discernible, the stigmatizing damages likely caused by the government`s overtly religious acts or statements are justiciable as long as the plaintiff belongs to the community to which the impugned act or statement relates.138 Clarification of this criterion would: representing applicants in matters such as Barber and Navy Chaplaincy. In addition, indisputable violations of the settlement clause can be challenged in federal court. Common sense dictates, and several scholars have recently argued that such constitutional violations become more numerous when lower courts declare them unjusticiable. The contested policies required public schools to open the school day with a Bible reading.89 However, both policies allowed students not to read the Bible either by staying in class without attending or by leaving the classroom altogether.90 Therefore, the plaintiffs did not claim to have been violated by compulsory participation in religious practice.91 Nor did parents express concerns to the subject of that their children readings. On the contrary, the damages alleged by the plaintiffs were purely stigmatizing: they claimed that the Bible-reading policy harmed them by denigrating them in the eyes of other students.

While this is admittedly counterintuitive, some courts and commentators – including the Barbercourt – have adopted it.76 Indeed, the Supreme Court has long held that the fact that no plaintiff can have the right to challenge a constitutional violation “is not grounds for obtaining standing.” 77 Following Obergefell v. Hodges, several state legislators have passed laws exempting people with religious objections to same-sex marriage from state antidiscrimination laws. By granting special privileges to religious adherents, these laws may violate the settlement clause. That observation concerns the threshold above which the applicants are entitled to raise such a challenge to the establishment clause. In particular, can the emotional damage caused by the stigmatizing message of a law – for example, the message that people in same-sex relationships are less valued members of the community – constitute a judicially recognizable “real violation” in the context of the establishment clause? This issue has divided the lower courts. On the basis of the fundamental principles of the separation of powers, several appellate courts have held that stigmatizing damages can only give rise to locus standi if they are accompanied by physical exposure to an impugned breach of the establishment clause.