Americans United for Separation of Church and State, Inc. v. HEW: Standing to Sue under the Establishment Clause

Abstract

injury is that its members are particularly concerned about the injury suffered by all citizens when the government fails to act within the confines of the establishment clause. Like the court in Americans United, the Supreme Court in Flast was moved to find a way to grant standing to plaintiffs interested only in preserving the principle of the establishment clause. The Court in Flast created the nexus test in order to carve out an establishment clause exception to the rule against allowing a plaintiff to pursue a generalized grievance. The court in Americans United viewed the decision in Flast as limited by the plaintiffs' allegation in the pleadings of their status as taxpayers. According to the circuit court, this allegation constrained the Supreme Court in Flast from finding a personal right in the establishment clause sufficient to support standing.130 The dissent in Americans United refuted this argument, noting that citizen standing in establishment clause cases was expressly urged in the Flast briefs and the lower court dissent. s 127. 619 F.2d at 265. 128. 405 U.S. 727, 739-40 (1972). 129. 392 U.S. at 118 (Harlan, J., dissenting). 130. 619 F.2d at 261. 131. Id. at 270 (Weis, J., dissenting). See Flast v. Gardner, 271 F. Supp. 1, 11-13 (S.D.N.Y. 1967) (Frankel, J., dissenting). March 1981]