'Faith-based' case tests establishment-clause lawsuit standing

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — Under the traditional doctrine of standing, you can’t challenge a government program you don’t like just because your taxes — or some infinitesimal fraction of your taxes — paid for the program.

To reduce litigation against the government for every general grievance, courts have required instead that taxpayers show they have suffered real, specific harm — or will soon — to a legally protected interest from the program they don’t like, before they can challenge it in court.

But a Supreme Court ruling 38 years ago made an exception to that high standard when a taxpayer alleges that a government program violates the establishment clause of the First Amendment ("Congress shall make no law respecting an establishment of religion"). In the 1968 decision Flast v. Cohen, the Court said it was making the exception in recognition of the fact that the framers wrote the establishment clause into the First Amendment because they feared that government would use its taxing and spending powers to favor one religion over another, or religion in general. As a result, the Court said taxpayer status alone should be enough to achieve standing in establishment clause cases.

On Dec. 1, the Court agreed to hear a case that could prompt a review, if not a narrowing, of that exception, which critics say has made it too easy to mount establishment-clause lawsuits against government efforts to accommodate religion.

The case, Hein v. Freedom from Religion Foundation, does not directly test the meaning of the establishment clause itself, but because standing is a threshold issue in every establishment-clause case, it will be closely watched by First Amendment advocates.

“This case could finally close a loophole in the law through which radical secularists have been driving entire convoys of trucks,” said Kevin Hasson, founder and president of the Becket Fund for Religious Liberty. “Paying taxes should not give every malcontent with a gripe against religion a license to sue the government. We hope this case will mean the end of this federal court plague of a ‘jurisprudence of hurt feelings.’”

From the other side of the debate, Barry Lynn, executive director of Americans United for Separation of Church and State, expressed hope that the Flast v. Cohen exception would not be erased.

“We believe that no tax money should be spent to advance religion,” Lynn said Dec. 1. “It’s essential that the justices uphold the principle that taxpayers can go to court when their money is being used to advance religion.”

The Court’s action Dec. 1 is part of what appears to be a broader review of standing doctrine by the justices. Earlier last week, the Court heard debate on whether states have standing to challenge the Environment Protection Agency’s decision not to regulate global warming. And last term, in DaimlerChrysler v. Cuno, the Court took a narrow view of taxpayer standing in a challenge to an Ohio state program that gives tax incentives to new businesses.

In the newly granted case, which will be argued early next year, the Freedom from Religion Foundation challenged parts of President Bush’s “faith-based” initiative, which sought to increase the participation of religious groups in providing government social services. By executive order, Bush created centers at executive-branch agencies that would help faith-based organizations apply for grants and increase that participation.

The Freedom from Religion Foundation and three of its members, invoking their standing as taxpayers, claim the centers violate the establishment clause by giving preferential treatment to religious groups over secular organizations seeking federal funds.

The Bush administration countered that the plaintiffs had no standing because, in essence, creating the centers was one step removed from action by Congress to spend taxpayer funds. It claimed that even under the Flast v. Cohen exception, taxpayers could challenge only congressional appropriations that directly benefit religion. But the government said creation of the centers was accomplished by executive agency action, not by a specific congressional appropriation.

In a ruling by Judge Richard Posner, the 7th U.S. Circuit Court of Appeals ruled in favor of standing for the challengers to the Bush program. Posner said that even if the program at issue is the creation of an executive branch agency, it resulted from congressional appropriations, thereby triggering taxpayer standing. Posner suggested that if the government prevailed, even a blatantly religious action by an executive agency — such as building a mosque — would be virtually immune from challenge.

The full 7th Circuit later denied a request by the Bush administration to review Posner’s decision, but six judges indicated they thought the Supreme Court should decide the issue.

In his appeal on behalf of Jay Hein, director of the White House Office of Faith-Based and Community Initiatives, Solicitor General Paul Clement said Posner’s ruling amounted to a “roving license” that would allow taxpayer challenges to even the most minor executive branch action. Clement asserts the Posner ruling vastly expands standing in ways that go against established Court precedent.

In response, the foundation’s lawyer, Richard Bolton of Madison, Wis., said that if Posner’s ruling were overturned, “entire blocks of executive spending would not be subject to the Establishment Clause.”

Bolton also told the Court that the government argues “ominously, but incorrectly, that the Seventh Circuit has opened a floodgate. The Court, in fact, only allows taxpayer standing to challenge misuse of Congressional appropriations that are used to endorse religion. Such suits have been allowed since Flast v. Cohen without any flood. Limiting taxpayer standing to Establishment Clause transgressions has been an effective gatekeeper.”

Thirteen states led by Indiana also filed a brief in the case urging that the high court overturn the 7th Circuit ruling to protect states, as well as the federal government, from lawsuits over executive-branch actions.