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Geoffrey R. Stone

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Eviscerating the Establishment Clause

Posted: 04/06/11 03:12 PM ET

In a decision earlier this week in Arizona Christian School Tuition Organization v. Winn, the five conservative Justices on the Supreme Court (Roberts, Scalia, Kennedy, Thomas and Alito) carved a large hole out of the Establishment Clause of the First Amendment. Although the issue in the case was subtle, the consequences are not.

The First Amendment prohibits government to make any law "respecting an establishment of religion." A central concern of the Establishment Clause, in the words of James Madison, was to forbid government "to force a citizen to contribute" even "three pence of his property for the support of" religion. As the Supreme Court recognized more than forty years ago, as a general proposition the Establishment Clause prohibits government from using its "taxing and spending power... to favor one religion over another or to support religion in general." Thus, the Establishment Clause forbids government to fund churches to enable them to spread their religious beliefs or to award special tax credits to individuals to reimburse them for their contributions to religious organizations.

There is a complication, however. Even though such government programs violate the Establishment Clause, it is not clear whether anyone can legally challenge them. To bring a lawsuit contesting a law's constitutionality, a plaintiff must have "standing" to sue. To have standing, a plaintiff must have suffered a distinct "injury in fact" as a result of the government action he wants to challenge. Standing is necessary because we want the parties to have a meaningful stake in the outcome of litigation. Otherwise, they might not adequately represent their position, which could result in a waste of judicial resources or, even worse, erroneous decisions.

Usually, this is not a problem. Most constitutional violations create a distinct "injury in fact" to particular individuals. For example, when an African-American child is excluded from a public school because of her race, when an individual is subjected to an unconstitutional search, when a person is arrested for her speech, or when a person is denied the right to vote, there is no question of standing. In such situations, it is easy to see that a particular individual has been harmed.

The Establishment Clause, however, poses a unique dilemma. Many Establishment Clause violations do not inflict a distinct "injury in fact" on any particular individual. Consider, for example, the illustrations I offered above. When government unconstitutionally funds religious organizations or grants tax credits to reimburse donors to such organizations, it is not clear exactly who is harmed -- other than taxpayers. But because the harm to any individual taxpayer is highly attenuated, traditional standing doctrine ordinarily would deny individual taxpayers standing to sue. This is a problem in the Establishment Clause context, because no one else has standing. The ironic result would be that no one would have standing to challenge the constitutionality of an unconstitutional government policy. Needless to say, this is untenable.

To solve this problem, the Supreme Court held in Flast v. Cohen in 1968 that taxpayers do have standing to challenge taxing and spending policies that violate the Establishment Clause. Until recently, federal courts at every level, including the Supreme Court, have consistently and broadly applied Flast to enable taxpayers to enforce the Establishment Clause.

In 2007, however, in Hein v. Freedom from Religion Foundation, the five conservative Justices took aim at Flast. In an opinion by Justice Samuel Alito, they held that taxpayers lacked standing to challenge the constitutionality of the Bush administration's program of faith-based initiatives. As Justice David Souter rightly observed in dissent, the conservatives' argument that Flast was distinguishable because it involved a challenge to a legislative rather than an executive branch program had absolutely no basis "in either logic or precedent."

Two days ago, the same five-Justice majority struck again. In Arizona Christian School Tuition Organization v. Winn, the Court considered a taxpayer challenge under the Establishment Clause to a state program that had provided $350 million in state tax credits to reimburse individuals who had made contributions to organizations that predominantly support Christian schools. In an opinion by Justice Anthony Kennedy, the conservatives held that taxpayers had no standing to challenge this program because it involved tax credits rather than government expenditures. In other words, if the government had given the funds directly to the organizations, the taxpayers would have standing, but because the government instead gave the funds to individuals to reimburse them for giving money to the organizations, the taxpayers did not have standing.

As Justice Elena Kagan explained in a powerful dissenting opinion, joined by Justice Breyer, Ginsburg and Sotomayor, this distinction "has as little basis in principle as it has in our precedent." Indeed, the conservatives' new approach "enables the government to end-run Flast's guarantee of access to the Judiciary." As Kagan observed, under the conservatives' analysis, a state that wants "to subsidize the ownership of crucifixes" can now simply grant a tax credit to individuals who buy crucifixes. That program would effectively be insulated from constitutional challenge, not because it is constitutional, but because no one would be permitted to raise the question..

With their decisions in Hein and Arizona Christian School Tuition Organization, the five conservatives on the Supreme Court have thus enabled government to violate the Establishment Clause at will, by denying courts the authority to declare even unconstitutional programs unconstitutional. In so doing, they have, in Justice Kagan's words, eviscerated "our Constitution's guarantee of religious neutrality."