Gene R. Nichol

Not a Winn-Win: Misconstruing Standing and the Establishment Clause

In Arizona Christian School Tuition Organization v. Winn, the Supreme Court, in a 5-4 decision, held that state taxpayers did not have standing under the Establishment Clause to challenge a state tax program in which taxpayers were given dollar-for-dollar tax credits for their contributions to private, non-profit state tuition organizations (STOs) that had been set up specifically to accept these contributions and then use the donated funds for “scholarships to students attending private schools, including religious schools.” Implicitly rejecting intangible, wisdely-shared, “psychic” harms as a basis for standing, the Winn majority held that though taxpayers might have standing to contest legislative appropriations designed to aid religious enterprises as in Flast v. Cohen, they had no standing to challenge legislative tax credit programs intended for the same purpose because there is no “extract[ion] and spend[ing]” of tax money in aid of religion in the latter program. This article examines two specific problems that arise from the Winn decision. First, we contend the distinction between concrete, individual harms and widely-shared, intangible claims is inescapably illusory and was inconsistently applied even in the Winn opinion itself. Second, we point out the Court’s assumption that widely-shared, intangible injuries such as psychic harm are not sufficient to confer standing conflicts with a large segment of Establishment Clause jurisprudence that identifies the prevention of such injuries as central First Amendment concerns. Such widely-shared, intangible injuries include coercion, sect preference, and outsider alienation, all harms that have all been posited as lying at the heart of the anti-Establishment mandate. Denying standing to litigants bringing such claims, therefore, undermines the anti-establishment mandate, even if the injury is thought of as intangible. We therefore contend by suggesting that such injuries are non-justiciable, Winn undercuts not only taxpayer standing but much that has been thought to underlie Establishment Clause jurisprudence itself.

DANIEL HUBBARD POLLITT

a student who entered his classroom hoping to fulfill a required elective course ended up joining the ever-widening circle of comparativists. An outstanding characteristic of Victor LeVine was a spirit of egalitarianism, which he nurtured in and outside of the classroom. Whether chairing a dissertation committee, discussing papers in a panel, or leading a workshop on conflict resolution, he was inclusive and encouraging of women, minorities, and the non–political science majorswhoflockedintohisclasses.Hepracticed what he preached on respecting the right of every individual to a life of dignity and did not tolerate bigotry in any form or shape. He maintained his dignity as a free thinker and confronted parochialism using his intellect to win the battle with dignity against forces of McCarthyism and racism. Not forgetting his early years as a refugee from Nazi Germany, LeVine also advocated for human rights and the equitable treatment of refugees fleeing tyrant regimes. He spent many hours gathering data on the human rights abuses suffered by opponents of regimes in francophone Africa and provided well-documented testimonials for asylum applicants seeking freedom. Le Vine’s abiding interest in peace and conflict resolution was born out of his understanding of its antithesis—war and the scourge of violence that haunted his generation. His analyses of nation building, war, and peace were always pragmatic and balanced. He did not shy away from volatile subjects such as the oneor twostate solution in Israel/Palestine; U.S. intervention in Iraq; terrorism and suicide bombers; electoral fraud in Africa, the Middle East, and Russia; and piracy in the Indian Ocean. His op-ed pieces in the St. Louis Post-Dispatch and his insistence on academic integrity in comparative analysis of foreign policymaking in the twentyfirst century will be sorely missed by his readers. A career spanning a half-century at Washington University in St. Louis (1961–2003; 2003–2010)ended at dawn on May 7, 2010, but Victor T. Le Vine left behind him a legacy of academic excellence, collegiality, and a compendium of work that bridged the twentieth and twenty-first centuries. He is survived by his wife, Nathalie; two children; four grandchildren; and two great-grandchildren.