Today the Supreme Court will hear oral arguments in Hein v Freedom From Religion Foundation, a case that revolves around the question of the taxpayer standing doctrine and whether citizens can sue for establishment clause violations based upon the use of their tax dollars. The case deals with whether government expenditures under Bush’s faith based initiative program violate the establishment clause. Chip Lupu and Robert Tuttle have a good background article on the legal issues in the case here.
The government is arguing that taxpayers lack standing to sue and the district court agreed with them and dismissed the suit. The 7th Circuit Court of Appeals overturned that decision and granted standing. Now the Supreme Court will decide which is correct. I’ll post a fairly long excerpt from Lupu and Tuttle that explains the legal history of this issue:
Many years ago, the Supreme Court ruled that federal taxpayers do not have standing to challenge the constitutionality of federal expenditure programs, because the connection between the allegedly wrongful expenditure and their status as taxpayers is too remote. Even if they win the suit, the Court then reasoned, taxpayers will not get a refund of the amount of the taxes that have been wrongfully spent. In 1968, however, the Court carved out an exception to the doctrine excluding taxpayers from standing in Flast v. Cohen, which authorized taxpayer standing to challenge congressional action alleged to be in violation of the specific limitations in the First Amendment, including the Establishment Clause. The reasoning in Flast turned on the special history of the Establishment Clause, which protects taxpayers from being compelled to support any religious faith. Although the Court in Flast focused on the congressional role in appropriating money that might be spent in aid of religious institutions, the Court twenty years later in Bowen v. Kendrick explicitly applied the Flast principle to Executive Branch decisions about spending legislative appropriations for programs under the Adolescent Family Life Act.
The only significant decision in the Supreme Court in the past 40 years in which the Court has rejected taxpayer status as sufficient to confer standing in Establishment Clause cases is Valley Forge Christian College v. Americans United for Separation of Church & State, Inc. The Valley Forge case involved a transfer of government-owned land and buildings from the Executive Branch to a religious college. The Supreme Court ruled that the Executive’s authority to transfer the property arose under Article IV, section 3, which authorizes Congress to dispose of property of the United States, rather than Art. I, section 8, clause 1, which authorizes the Congress to tax and spend. On that basis, the Court concluded that current taxpayers are not directly injured by transfers of property acquired earlier, with tax dollars contributed by prior taxpayers.
Narrowly framed, the question in Hein v. FFRF is whether the taxpayer plaintiffs in this case are more like those in Flast and Bowen, in which the Court recognized taxpayer standing as an exception to the general rule against such standing, or are closer to those in the Valley Forge case, in which the exclusive role of the Executive Branch in deciding to transfer the property led the Court to deny taxpayer standing.
Viewed more broadly, the Justices may see Hein v. FFRF as a case in which to reaffirm the concept that standing to sue under the Establishment Clause should be construed generously, as the Court did in Flast, or to reject that concept, as the Court did in Valley Forge. The principal reason to view standing broadly in Establishment Clause cases is not simply the historical connection with taxpayers concerned about being compelled to support state-favored religions. Rather, the key concern in today’s world is whether any party will be able to bring Establishment Clause cases to the courts. Because most alleged violations of the Clause involve actions that favor religion, and coerce no one into religious experience, a narrow doctrine of standing to sue would make many government actions effectively unchallengeable. Constitutional examination of government expenditures that support religious entities, and of government expression of religious sentiments (like displays of the Ten Commandments), can only occur if the courts construe the concept of standing in a broad way, because no one would have a personal and specific injury in such matters if injury were narrowly defined.
That last paragraph is the key to why the religious right so badly wants the court to deny taxpayer standing in establishment clause cases. It’s just another example of what I call the Tonya Harding Strategy – they have a hard time winning in court, so instead they want to prevent their opponents from reaching the courtroom.