WASHINGTON (ABP) — Church-state experts said the Supreme Court, in a June 25 decision that limited taxpayers' ability to sue the government over violations of religious freedom, didn't go as far as it could have.
However, they agreed, the ruling still has the potential to discourage some lawsuits aimed at stopping government promotion of religion.
Whatever the case, they said, the decision in Hein v. Freedom From Religion Foundation provides some clues about the high court's First Amendment future. It shows that the panel's two newest members — Chief Justice John Roberts and Justice Samuel Alito — may not be as inclined as their more activist conservative colleagues to do away with well-established precedents on church-state separation.
The Hein ruling “is not a revolutionary decision,” said Bob Tuttle, a professor at George Washington University who also tracks church-state law for the Roundtable on Religion and Social Welfare Policy, a non-partisan group sponsored by the Rockefeller Institute and the Pew Charitable Trusts.
In the 5-4 decision, the court's majority said that status as a taxpayer does not qualify one to sue over federal expenditures not clearly tied to congressional action, even when those expenditures violate religious freedom.
The decision is a victory for the White House — over whose faith-based initiative the lawsuit was initially filed — and something of a setback for advocates of strong church-state separation. It also marks the first time the Supreme Court has dealt with President Bush's efforts to expand the government's ability to fund social services through churches and other religious charities.
One of the reasons the controlling opinion in Hein is not revolutionary, the experts said, is because it neither overruled nor broadened the court's earlier Flast v. Cohen decision, which allows taxpayers to sue the government over violations of the First Amendment's establishment clause. The clause — the first 10 words of the amendment — prevents the government from endorsing a religion.
The federal courts have long held that taxpayers do not generally have standing to sue the government over how it disburses funds — because the connection between individual taxpayer contributions and expenditures is too remote. Individuals must prove a specific “injury,” in legal terms, in order to sue the government over the way it spends money.
But in the 1968 Flast ruling, the Supreme Court recognized a special exception to the generalized standing doctrine in regard to establishment-clause cases.
The justices reasoned that the exception was necessary because of the clause's special history. Many of the Constitution's framers — such as James Madison — argued forcefully against European-style state support and financing of churches, leading to the clause's existence.
Therefore, the Flast court said, the very fact that the government was using public funds to support religion was in itself injurious to taxpayers.
But Justice Samuel Alito, who authored the controlling plurality opinion in the Hein ruling, said the current court believed the lawsuit that originated the case was not allowable under Flast.
“The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here,” he wrote. He referred to a provision of the earlier ruling that said before the courts could hear a taxpayer lawsuit in the case there must be a clear nexus between congressional action to authorize government spending and the fact that money was spent to promote religion.
In the Hein case, the Wisconsin-based Freedom From Religion Foundation sued the White House over conferences it held to promote Bush's plan to expand government support for religious charities. However, the funds that paid for the conferences came from a general congressional appropriation for White House activities.
Alito said taxpayers would have needed to challenge specific funding decisions pursuant to congressional action in order to gain standing in the case.
The court's four dissenters said such a distinction made no sense in terms of upholding the establishment clause. Melissa Rogers, a church-state lawyer who is a visiting professor at Wake Forest Divinity School, agreed.
“The crux of the problem is that there's no principled basis for saying that the injury to the taxpayer is any different when it is the executive branch spending money to promote religion at its own discretion and when the executive branch is spending money to promote religion pursuant to specific directions by Congress,” she wrote, in a post analyzing the decision on her blog (melissarogers.typepad.com).
She said one consequence of such reasoning could be “the executive branch doing some things it would not have done if the threat of taxpayer lawsuits hung over its head.”
Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, said that's a special concern today, because presidents and their administrations have shown far more willingness in recent years to fund religious entities than they did 30 or 40 years ago.
“Any narrowing of Flast is more problematic today than it was at the time Flast was decided, because we are now at a time where we have seen executive-branch action that pushes the envelope on establishment of religion,” she said.
Hollman — who authored a friend-of-the-court brief in support of the Freedom From Religion Foundation's argument in the Hein case — noted, as an example, the way Bush has advanced his plan for funding religious charities. When he failed repeatedly to get congressional authorization for expanding religious groups' eligibility for various charity-program grants, he simply did it through executive orders.
“Now that we've been in this era of the faith-based initiative and executive action, the threats are more real — and we have a decision that says some of those threats are practically immune from lawsuits,” she said.
But George Washington Law School's Tuttle said most establishment-clause lawsuits should still be able to proceed in the wake of Hein.
“Assuming that there wasn't this very, very narrow reading of Flast … you should be able to find a plaintiff in most cases. There are all kinds of bases for standing that aren't based on taxpayer standing,” he said.
Tuttle referred to many establishment-clause cases where plaintiffs can claim injury other than simply as a taxpayer. For instance, there's the case of a lawsuit against a monument of the Ten Commandments that former Alabama Chief Justice Roy Moore had placed in the rotunda of the state's judicial headquarters building. A group of attorneys who regularly practiced in the building and took offense at seeing the monument regularly sued successfully to have it removed.
Rogers noted that, in Hein, the justices also “kept the door open to taxpayer challenges that target grants and other monies that are disbursed by the executive branch pursuant to statutory programs. That is where the bulk of the lawsuits are focused, and those lawsuits will proceed unimpeded.”
Perhaps the most important part of the decision, however, was the apparent division over judicial temperament it revealed between Roberts and Alito and the court's most conservative members.
Justice Antonin Scalia, in a blistering opinion concurring in the judgment but not in Alito's reasoning, argued forcefully that the court should have overturned Flast, doing away with taxpayer standing in church-state cases altogether.
Scalia characterized Alito's reasoning in distinguishing the taxpayers in Hein from those in Flast as “meaningless and disingenuous distinctions” of the sort “that deaden the soul of the law.”
He continued, “Either Flast was correct, and must be accorded the wide application that it logically dictates, or it was not, and must be abandoned in its entirety.” Justice Clarence Thomas joined Scalia in the opinion, which echoed arguments found in friend-of-the-court briefs on the case that some conservative Christian groups submitted.
But the fact that Alito — who was joined by Chief Justice John Roberts and Justice Anthony Kennedy — did not accept those arguments and overturn Flast is a small victory for those who support strong enforcement of the establishment clause, the experts said.
It may indicate that Alito and Roberts, who had ruled little on establishment-clause cases in their judicial careers, are not willing to make radical changes to the precedents in that area. The court's decisions on the First Amendment in the middle part of the 20th Century placed a high value on preventing any government support for religion.
“[W]ith a new court in place, hopes (or fears, depending which side you are on) were high that the court would begin to wipe the establishment-clause slate clean in many respects,” wrote Rogers. “The Hein case was the first opportunity for the Roberts Court to begin this project.”
David Stras, writing for the Supreme Court-tracking website SCOTUSblog (www.scotusblog.com), said the decision suggests Alito and Roberts, even if they disagree with the precedents' view of the establishment clause, will nonetheless be gradualists rather than radicals in charting a new course.
“Perhaps more than any other case, yesterday's decision in Hein demonstrates that Chief Justice Roberts and Justice Alito value judicial norms differently than Justices Scalia and Thomas,” Stras wrote. Roberts and Alito, he continued, “are satisfied in making incremental moves in the law rather than taking the bold steps advocated by” Scalia and Thomas.
The Hein decision is No. 06-157.
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Supreme Court decision in Hein v. Freedom From Religion Foundation
Supreme Court denies taxpayers ability to sue Bush over faith-based funding (6/25)
Combative high court hears arguments over ability to file religion lawsuits (2/28) (6/25)
Experts: More danger than meets eye in upcoming Supreme Court case (2/22)
Supreme Court to decide if taxpayers can sue over Bush's faith-based plan (12/4/2006)