University of Chicago Law Review

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In the wake of Obergefell v Hodges, a number of state legislatures passed laws exempting individuals with religious objections to same-sex marriage from state antidiscrimination laws. By granting special privileges to religious adherents, these laws may violate the Establishment Clause. This Comment concerns the threshold issue of which plaintiffs have standing to bring such an Establishment Clause challenge. Specifically, can the emotional harm caused by a law’s stigmatizing message—for example, the message that individuals in same-sex relationships are lessvalued members of the community—constitute a judicially cognizable “injury in fact” in the Establishment Clause context? This question has split the lower courts. Drawing on basic separation-of-powers principles, several courts of appeals have held that stigmatic harms can confer standing only when they are accompanied by physical exposure to a challenged Establishment Clause violation. By contrast, other courts of appeals have relied on the Supreme Court’s Establishment Clause merits decisions to uphold the justiciability of “purely stigmatic harms,” or stigmatic harms that are not accompanied by physical contact. This Comment suggests a different approach. It proposes that the Court’s seminal Establishment Clause standing cases imply that purely stigmatic harms do confer standing, so long as the plaintiff belongs to the community affected by the alleged Establishment Clause violation. In addition to articulating the precedential basis for this proposed test, this Comment describes the policy advantages and practical applications of adopting such a rule.

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