The 5th Circuit Court of Appeals has dismissed the Tangipahoa, LA school board prayer case for lack of standing. An earlier 3-judge panel had ruled against the practice of sectarian prayers but issued 3 separate opinions that seemed to leave the door open for non-sectarian prayers. Both sides requested clarification on that issue from the entire 5th Circuit, which surprised everyone (me, anyway) by focusing on the issue of standing instead.
None of the 3 original opinions contested standing. But in an 8-7 ruling issued today, the court determined the plaintiffs don't have the right to bring the case because there is no "proof in the record that Doe or his sons were exposed to, and may thus claim to have been injured by, invocations given at any Tangipahoa Parish School Board meeting." The issue of whether plaintiffs heard the prayers in question was apparently not challenged by defendants during the trial or an appeal. Nevertheless, the slim majority said, there is no authority on which they are "allowed" to "infer" standing. You can read the opinion here. Some quotes below:
The dissent written by Judge Benvanides replies:
The Does plainly alleged that they had attended Board meetings and that they had witnessed the invocations offered there, and the Pretrial Order reveals that the Board conceded this fact. Yet the majority sidesteps this record evidence, choosing instead to redraw the parameters of this dispute and assert that standing is now lacking.
Judge Barksdale's dissent adds that
In the context of the Establishment Clause, "we attach considerable weight to… standing… not [having] been an issue in the Supreme Court in similar cases". For example, standing existed for a claimed Establishment Clause violation that had impaired "use or enjoyment of a public facility". … [S]tanding is more relaxed for Establishment Clause claims, especially concerning schools… … For many reasons, some more obvious than others, this is a sad day for our court.
Will this mark yet another step in the attempt to weaken the Establishment Clause by making it more difficult to sue? Whether or not this particular decision would have any bearing on future cases, the 5th Circuit is clearly keen on tightening those "more relaxed" standards when it comes to Establishment Clause cases. That is not good news for those of us who hope to keep our government accountable for their actions.
