Supreme Standing

By Walter M. Weber

We live in a litigious society, yet there are safeguards in the courts against our disputatious instinct. The normal rule in federal court is that a citizen can only file suit against the government if he's been injured; one can't simply waltz into court and allege any action to be illegal. The courts would dismiss virtually all such claims, explaining that a citizen lacks standing to sue unless he can show some special injury to himself (e.g., that government officials seized or damaged his property or person).

I say courts would dismiss "virtually" all such claims, because there's one exception: suits contesting government expenditures that allegedly violate the Establishment Clause of the First Amendment.

Thanks to a 1968 ruling by the Warren Court -- Flast v. Cohen -- a citizen can challenge a federal faith-based initiative (for example) without asserting anything beyond his status as a federal taxpayer.

In years since, disgruntled church-state separationists have used Flast to challenge federal programs like Title I (education assistance), the Adolescent Family Life Act, the AmeriCorps Education Awards Program, and even the National Motto ("In God We Trust"). By contrast, equally unhappy taxpayers may not challenge federal programs that they allege violate other limits on the power of Congress (like massive social welfare spending).

Controversy over Flast was extant even at the time of the decision, and was given voice in a meticulous dissent by Justice John Marshall Harlan. Granting private citizens the right to object on behalf of the general public when they have not been personally injured treats them like "private attorneys-general" even though these citizens are "indistinguishable from any group selected at random from among the general population, taxpayers and nontaxpayers alike."

In subsequent cases the Supreme Court has steadfastly refused to extend Flast rights to any area of law outside of the Establishment Clause. And even in that Establishment context the Court has insisted that the challenge be to federal spending, not to government action benefiting a religious group in other ways (such as the transferring of property, not money, to a religious college).

Flast itself, however, while confined to a limited (albeit important) set of applications, still stands. And that means the successors of Madalyn Murray O'Hair still enjoy a unique free pass to federal court to air their grievances.

That may soon change: The Supreme Court may be ready to consider overruling the anomalous Flast decision. The Court has already confined Flast, and in cases decided since, has systematically rejected every single argument Chief Justice Warren offered in support of the decision. (For details, see amicus brief the American Center for Law and Justice recently filed in the Supreme Court ).

Having already eroded the entire foundation supporting Flast, the Supreme Court has left it in a very precarious position. All the Court needs now is the will, and the opportunity, formally to overrule Flast.

The Court now has that opportunity. In Hein v. Freedom From Religion Foundation, the Bush administration asked the Supreme Court to review a lower court ruling that granted separationist taxpayers standing to sue over President Bush's faith-based initiatives; the Court has agreed to hear the case.

Waiting in the wings is University of Notre Dame v. Laskowski, in which Notre Dame is asking the Court to review the standing of those challenging an educational training grant awarded to that Catholic university. The attorneys for Notre Dame have expressly asked the Court to reconsider Flast. The Court will likely review Notre Dame's petition this month.

Whether in Hein or Notre Dame, the Court has the chance at last to correct an error that for decades has unfairly exempted church-state separationists from the rules governing every other citizen. The Warren Court made an unbelieving few more equal than the rest; the Roberts court can now right that wrong.