Standing makes my brain hurt.  I am not referring to the act of getting up out of my chair, but to the legal doctrine that controls whether a person can access the federal courts to have his case heard.  Put simply, a person has “standing” if he can show he has suffered a personal and direct injury as a result of some governmental policy or action.  With that definition in mind, review the two scenarios described below and see which one you think would give you standing to bring a case in federal court.

Scenario 1: You are an atheist.  You are driving down a highway at 65 miles per hour, listening to Sammy Hagar’s classic (at least in my view) tune “I Can’t Drive 55” (the posted speed limit is 45), and you ** GASP** at seeing a cross designed and placed on the side of the road by a private organization, memorializing a fallen police officer.  You **GASP** because you are offended by the cross.  As an atheist, anything religious in public view tends to make you **GASP**.

Scenario 2: You are a student at a public university.  The university has a speech code (which are virtually always found unconstitutional by reviewing courts) that prohibits, among other things, conduct that creates an “intimidating, hostile or offensive work or educational environment.”  In a speech class, you give a speech reflecting your biblical opposition to same-sex ”marriage.”   You are punished for your speech because it offended your professor and other students in the class.  Your professor refuses to grade your speech, threatens you with expulsion, and calls you a “fascist bastard” in front of your peers.  The Dean of your program later confirms that your speech offended other students and that students have a right to report offensive conduct pursuant to the university’s speech code.  Based on how you’ve been treated, you no longer express your Christian views in or out of class for fear of being punished for “offending” someone.

While you may think Scenario 2 presents a far better case for standing, courts are increasingly (and alarmingly) more inclined to find standing under Scenario 1 than 2.  In fact, both scenarios are drawn (with some creative license as to Scenario 1) from current federal cases.  And in those cases, the Scenario 1 plaintiff had standing while the Scenario 2 plaintiff did not (so far, the decisions are likely to be appealed).

This gives me an instantaneous migraine.  If individuals with an eggshell psyche have standing to bring Establishment Clause claims in federal court simply because they briefly glimpse a cross they drive by at 55+ miles per hour, then how can a public university student who was targeted and punished because of his “offensive” religious expression, by a university whose policies authorize punishment of “offensive” conduct, not have standing to challenge those policies?  Pass me a bottle of Excedrin, please, and make it extra strength.