Summary of Hein v. Freedom From Religion Foundation, Inc.
On June 25, 2007, in Hein v. Freedom From Religion Foundation, Inc.,1 the Supreme Court of the United States held by a 5-4 vote that the Freedom From Religion Foundation (FFRF) did not have legal standing to bring an Establishment Clause challenge to the use of taxpayer dollars to fund a program of President Bushs faith-based initiatives. In other words, FFRFs mere desire to enforce a strict separation of church and state was not a sufficient interest upon which to sue the federal government under the Establishment Clause; the group suffered no concrete injury.
Hein was an important victory for the Presidents faith-based initiatives. The American Center for Law and Justice (ACLJ) filed an amicus curiae brief with the Court in support of the federal governments position.2 The ACLJs brief asked the Court to reject FFRFs attempt to expand the scope of a 1968 decision, Flast v. Cohen,3 in which the Court recognized a limited ability of taxpayers to bring legal challenges under the Establishment Clause. The Hein decision clearly limits Flast and will seriously impact future separationist attempts to claim a special privilege to sue as taxpayers without showing that a government policy actually injured them.
I. Factual Background and Procedural History.
In 2001, President Bush issued several executive orders to create the White House Office of Faith-Based and Community Initiatives which was designed to ensure[] that faith-based community groups would be eligible to compete for federal financial support without impairing their independence or autonomy . . . .4 A significant purpose of the Faith-Based Initiatives was to ensure that faith-based social service programs would not be discriminated against by the federal government because of their religious affiliation. Congress had nothing to do with these programs other than the fact that it granted funds to the executive branch which the President and the executive agencies could use for their daily operations.
FFRF sued the directors of the Faith-Based Initiatives under the Establishment Clause for holding conferences that allegedly endorsed religion. FRFF claimed that the conferences were designed to promote, and had the effect of promoting, religious community groups over secular ones.5 While the federal District Court ruled against FFRF, the United States Court of Appeals for the Seventh Circuit held that FFRF had legal standing to bring an Establishment Clause challenge to the Faith-Based Initiatives.
II. Justice Alitos Plurality Opinion.
The Supreme Court held by a 5-4 vote that FFRF did not have legal standing to bring the case, although there was no majority opinion. Chief Justice Roberts and Justice Kennedy joined Justice Alitos plurality opinion which applied the Flast decision and held that FFRF lacked standing. Justices Scalia and Thomas issued a concurring opinion arguing that Flast should be overruled.
Justice Alitos opinion began by describing the general rule for standing which is related to the constitutional requirement under Article III that a federal court may only hear a genuine case or controversy.6 The general standing rule is that [a] plaintiff must allege personal injury fairly traceable to the defendants allegedly unlawful conduct and likely to be redressed by the requested relief.7 This requirement keeps courts from passing judgment on every government action. Courts must instead decide on the rights of individuals . . . .8
Generally speaking, a person is prohibited from suing the government solely on the basis that he or she pays taxes. So called taxpayer standing is frowned upon because the interest of a taxpayer in seeing that all tax dollars are spent in a constitutionally acceptable manner is too generalized and attenuated to support Article III standing.9 Indeed,
the interests of the taxpayer are, in essence, the interests of the public-at-large, [so] deciding a constitutional claim based solely on taxpayer standing would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.10
Nevertheless, in Flast, the Supreme Court carved out a narrow exception for this general prohibition against taxpayer standing.11 The Court in Flast held that plaintiffs had standing to bring an Establishment Clause challenge to an act of Congress even though they had not been directly injured by the congressional act.
FFRF argued that the Flast exception applied to its challenge to the spending of funds under the Presidents faith-based initiatives. The plurality disagreed, noting that [t]he expenditures at issue in Flast were made pursuant to an express congressional mandate and a specific congressional appropriation.12 This created the logical link between the plaintiffs status as a taxpayer and the Establishment Clause challenge.13 Justice Alito noted that Hein raised a different issue because it involved the provision by Congress of general appropriations to the executive branch that did not expressly mention the expenditures which FFRF complained about rather than a specific appropriation. The expenditures resulted from executive discretion, not congressional action.14
The Court held that the exception in Flast was a narrow one which must be generally limited to the facts of that case.15 FFRF argued that the Congressional-executive spending distinction was arbitrary because the injury to taxpayers is identical.16 The Court, however, decline[d] this invitation to extend its holding to encompass discretionary Executive Branch expenditures.17 Instead, Flast must remain the outer boundary of exceptions to the general rule denying taxpayer standing.18 Expanding Flast would open the door to challenges to almost any action taken by the Executive Branch.19 An expansion of Flast would raise serious separation-of-powers concerns because [t]he rule [FFRF] propose[s] would enlist the federal courts to superintend, at the behest of any federal taxpayer, the speeches, statements, and myriad daily activities of the President, his staff, and other Executive Branch officials.20
Justice Alito then criticized the parade of horribles that FFRF claimed would result if the Court denied standing in that case such as an unlimited ability of the executive branch to build and promote churches of a preferred religion. The Court noted that Congress could quickly step in to remedy such an abuse, and actions of this nature could often be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing.21 The Court concluded by stating, [i]t is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. . . . We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.22
III. Justice Kennedys Concurring Opinion.
Justice Kennedy issued a short concurring opinion which restated some of the arguments made by the plurality. While the plurality opinion argued that Flasts validity did not need to be addressed in order to decide the case, Justice Kennedy made his position clear that the result reached in Flast is correct and should not be called into question.23 Justice Kennedy also noted that, even in the absence of taxpayer standing to bring a court challenge, each branch of government had a responsibility to obey the Constitution in all of its actions.24
IV. Justice Scalias Concurring Opinion.
Justice Scalia, joined by Justice Thomas, wrote a concurring opinion that criticized the Flast decision and the pluralitys application of it to the case at hand. Justice Scalia argued that the plurality made utterly meaningless distinctions between this case and previous taxpayer standing cases that reached a different result.25 To eliminate such inconsistencies, the Court should decide cases by the rule of law, not a show of hands.26 Justice Scalia argued that logic and the rule of law require that Flast should be overruled (or, in the alternative, applied to all challenges to government spending).
Justice Scalia argued that there are two distinct types of alleged taxpayer injurywallet and psychic injury.27 Wallet injury is where a taxpayer argues that his taxes would have been less if only the government had not illegally spent the money.28 Psychic injury is where a taxpayer has mental displeasure over how his or her taxes are spent and changes in government spending would solve the problem.29 Justice Scalia argued that the Court erroneously accepted psychic injury in Flast which has no basis in Article III of the Constitution.30 In addition, there is no principled reason why the spending in Flast created standing but the spending in Hein does not.
Justice Scalia then argued that a decision for FFRF would create a situation where ideologically motivated taxpayers could roam the country in search of governmental wrongdoing and . . . reveal their discoveries in federal court.31 The distinctions made by the plurality in this case will only lead to further meaningless and disingenuous distinctions in the future, causing lawyers and judges to make arguments that deaden the soul of the law which is logic and reason.32 If Flast was correct, then logic dictates that it be widely applied; if not, then it should be abandoned in its entirety.33 Flast should be abandoned because generalized grievances affecting the public at large have their remedy in the political process,34 not in federal courts.
V. Justice Souters Dissenting Opinion.
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, argued that the injury to the taxpayers in Flast was no different than that suffered by FFRF in this case. The dissent could see no basis for [the] distinction [made by the plurality] in either logic or precedent . . . .35 According to the dissent, the injury in Flast that gave rise to standing was the very fact that a citizens money was being taken through taxation and spent in a manner that violates the Establishment Clause. Flast should control this case because the injury is the same.
Justice Souter cited to James Madisons Memorial and Remonstrance Against Religious Assessments which argued that the government may not require a taxpayer to give even the smallest amount of his property to further an establishment of religion.36 The dissent argued that Flast recognized that citizens have a judicially enforceable right not to be taxed for the support of a religious institution.37 Flast applies to the present case because identifiable amounts of taxpayer funds were being spent to fund conferences that allegedly supported religion.38
Justice Souter also argued that the principle of separation of powers did not require a distinction to be drawn between expenditures specifically authorized by Congress and those that fall within the discretion of the executive branch because the Court owes the same degree of respect to both branches.39 Moreover, Flast is not the only case in which a form of intangible injury has been adequate to establish standing.40
VI. Conclusion
Hein marks a significant victory for the Presidents faith-based initiatives. The decision rejected an attempt to expand Flast beyond direct Congressional appropriations into the realm of executive branch discretionary spending. Hein will seriously impact future separationist attempts to challenge government policies under the Establishment Clause that have not actually injured them. This will make it more difficult for those who seek to remove Americas religious heritage from the public arena to bring Establishment Clause lawsuits in the future.
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1 Hein v. Freedom From Religion Found., Inc., No. 06-157, slip op. (June 25, 2007).
2 Amicus Curiae Brief of the American Center for Law and Justice in Support of Petitioners, No. 06-157, available at http://www.aclj.org/Media/PDF/Hein_v_FFRF_ACLJ_Amicus_Brief.pdf.
3 392 U.S. 83 (1968).
4 Hein, slip op. at 3 (plurality opinion).
5 Id. at 4-5.
6 See U.S. Const., art. III 2.
7 Hein, slip op. at 7 (plurality opinion) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
8 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
9 Hein, slip op. at 8 (plurality opinion).
10 Id. at 9 (quoting Frothingham v. Mellon, 262 U.S. 447, 489 (1923)) (second alternation in original).
11 Id. at 11.
12 Id. at 12.
13 See Flast, 392 U.S. at 102.
14 Hein, slip op. at 14 (plurality opinion).
15 Justice Alito described several other cases that had applied or declined to apply Flast and argued that these cases demonstrated that a link to a direct appropriation by Congress was required to establish standing. See, e.g., Bowen v. Kendrick, 487 U.S. 589 (1988) (holding that the plaintiffs had standing because Congress granted the executive branch money to spend on a specific program which Congress had contemplated might benefit religious groups); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) (holding that the plaintiffs lacked standing because the activity at issue was not a congressional action); Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208 (1974) (stating that plaintiffs lacked standing because they did not challenge an enactment under Art. I, 8, but rather the action of the Executive Branch . . .).
16 Hein, slip op. at 18 (plurality opinion).
17 Id.
18 Id. at 19 (quoting United States v. Richardson, 418 U.S. 166, 196 (1974)).
19 Id. at 20.
20 Id. at 21.
21 Id. at 24.
22 Id.
23 Id. at 1 (Kennedy, J., concurring).
24 Id. at 3.
25 Id. at 1 (Scalia, J., concurring).
26 Id.
27 Id. at 2.
28 Id.
29 Id.
30 Id. at 12.
31 Id. (internal quotations omitted).
32 Id.
33 Id.
34 Id. at 20.
35 Id. at 1 (Souter, J., dissenting).
36 Id. at 1-2.
37 Id. at 3 (quoting Flast, 392 U.S. at 114).
38 Id.
39 Id. at 3-4.
40 Id. at 5-6 (citations omitted).