ACSBlog: The Blog of the American Constitution Society

UPDATE: Per SCOTUSBlog: "In the second decision of the day, also written by Alito and again dividing the Court 5-4, the Justices ruled that taxpayers do not have standing to sue to challenge the White House program on federal aid to faith-based organizations. The Court did not overrule Flast v. Cohen, also [sic] two Justices in the majority urged it to do so."

Today, the Supreme Court issued its decision in Hein v. Freedom From Religion Foundation.  ACSBlog will provide updates as they are available.  Justice Alito wrote the 5-4 opinion.

Here is ACSBlog's mid-term preview of this case:

The President & the Establishment Clause

In most cases, a person may not challenge an unconstitutional law in court merely because as a taxpayer, they disapprove of their tax dollars being spent in an unconstitutional manner.  In Flast v. Cohen, however, the Supreme Court held that taxpayers do have standing to challenge government spending which allegedly violates the Establishment Clause.  Concurring in Flast, Justice Fortas characterized this decision as necessary to ensure that laws which would otherwise be immunized from challenge be subject to scrutiny under the Constitution:

I believe, we must recognize that our principle of judicial scrutiny of legislative acts which raise important constitutional questions requires that the issue here presented - the separation of state and church - which the Founding Fathers regarded as fundamental to our constitutional system - should be subjected to judicial testing. This is not a question which we, if we are to be faithful to our trust, should consign to limbo, unacknowledged, unresolved, and undecided.

This term, in Hein v. Freedom From Religion Foundation, the Bush Administration is seeking an exception to Flast which would strip taxpayers of standing to challenge many Executive Branch programs that violate the Establishment Clause.  Hein involves a challenge to White House sponsored conferences which allegedly promoted religious organizations in favor of non-religious ones.  According to the Solicitor General, these conferences should be immune to taxpayer challenges because they involve “Executive – not congressional – action,” and thus should be subject to a different rule than if the conferences were funded by a grant specifically authorized by Congress. 

ACSBlog guest blogger Steven Green comments on the implications of this argument:

If this distinction is accepted by the Court, then Executive expenditures that advance religion – or even favor one religion over others – would be potentially immune from challenge if they involved a discretionary funding source rather than a clear “statutory mandate.”  As Judge Posner hypothesized in his opinion, there would be nothing to stop the Secretary of Homeland Security from using unearmarked funds from his budget to build and fund an Islamic mosque that would support U.S. foreign policy on the assumption it would reduce Islamist terrorism in the country.  As Justice Brennan observed in his Valley Forge dissent, it is likely that the Framers were more concerned about government expenditures on behalf of religion and less concerned about the funding mechanism.  Hein, unfortunately, invites the Court to engage in such artificial line-drawing.

Several religious conservative groups are asking the Court to limit Establishment Clause challenges even further.  People for the American Way’s Judith Schaeffer discussed their amicus briefs at a recent ACS panel:

As far reaching as the government’s own position is in attempting to cut back on taxpayer standing in Establishment Clause cases, some of the amici supporting the government have taken even more extreme positions, that would be even more harmful to religious liberty if they were to be adopted by the Supreme Court. . . .
 

First there’s Pat Robertson’s ACLJ, the American Center for Law & Justice, which has come right out in its amicus brief and urged the Supreme Court to overturn Flast v. Cohen, and completely eliminate the right to taxpayers to challenge government expenditures in violation of the Establishment Clause.  The ACLJ is trying to close the courthouse doors to taxpayers who want to seek relief when the government forces them to subsidize religion. . . . 

On behalf of an organization called the Foundation for Moral Law, [former Alabama Chief Justice Roy] Moore has taken the truly extremist position not only that taxpayers should not have standing for Establishment Clause purposes, but that no individual should have.  In his view, the Establishment Clause “does not confer an individual right capable of vindication in the courts. . . .” 

Justice Clarence Thomas himself has indicated that he shares this view.  In his concurrence in the Newdow case—that was the Pledge of Allegiance case—Justice Thomas wrote “the Establishment Clause does not protect any individual right.”  That is simply an astonishing view of the Constitution.

Four distinct positions have thus been advocated in Hein.  The respondent, and Judge Posner’s majority decision for the court below, argue that Flast should remain the law of the land, and should apply equally to the Executive and Legislative Branches.  The Bush Administration believes that a special exception to Flast should be created for Executive appropriations.  Pat Robertson calls for taxpayer standing to be eliminated under the Establishment Clause. And Roy Moore and Justice Thomas argue that the Establishment Clause provides no individual rights whatsoever. 

The Roberts Court will decide which of these options it likes best sometime between now and June 25th.