The Faith-Based Initiative

Federal lawsuits regarding the role of government in religion get a lot of media attention these days: Legal disputes about public displays of the Ten Commandments nativity scenes on public grounds and prayers at public gatherings like legislatures county commissions and schools grab headlines every month. These lawsuits are grounded in the so-called establishment clause of the First Amendment of the United States Constitution which states that Congress shall make no law respecting an establishment of religion. Judicial interpretation of the establishment clause has resulted in a seemingly endless list of factors and tests that must be applied to each case to determine whether the government’s involvement in a particular religious activity is unconstitutional. The law is so inconsistent and muddled that it often confuses the very judges who decide these cases. One federal appeals court has gone so far as to describe this area of the law as establishment clause purgatory.[1]The sad fact is that it does not have to be this way. The Supreme Court could clear up most of the confusion in these cases by simply applying the literal meaning of the establishment clause rather than the judicial interpretations to these cases. In one case now before the Court Hein v. Freedom from Religion Foundation the justices have a golden opportunity to do just that. A literal interpretation of the establishment clause would radically and positively change the way such disputes are handled in our society by actually keeping them out of the court system altogether.

The Legal Backdrop

The threshold issue in Hein involves the legal concept of standing. In every lawsuit when a plaintiff sues a defendant the court must determine whether the plaintiff possesses standing to sue i.e. whether the plaintiff is legally entitled to bring the case to court. Article III of the Constitution states that only actual cases and controversies[2] may be decided in the federal courts and the Supreme Court has over time defined what that means.

While standing may seem to be a minor technical issue in reality it is vitally important to ensuring that courts stay within their designated role of deciding legal controversies rather than making law. If anyone could bring a lawsuit regardless of his or her connection to the action being challenged then every policy decision and action by a government or private entity could be questioned in court. Not only would our courts be overwhelmed but judges would be making decisions that should be made by elected or appointed officials. The issue of who is entitled to standing has widespread implications.

In most cases the Supreme Court has stated that a plaintiff must meet three criteria in order to have standing. First, the plaintiff must have suffered a real injury not a hypothetical or conjectural one.[3] Second, the plaintiff must be able to trace the cause of the injury to the defendant’s conduct.[4] Third, the injury must be one that has a legal remedy”—i.e. a court must be able to specify the damages and compensate the plaintiff for the injury whether through a monetary award or an injunction.[5]

The Supreme Court has long held that one’s status as a taxpayer does not by itself provide sufficient basis for bringing a lawsuit against the government. A complaint about government actions based on the fact of being a taxpayer is shared with millions of others; [it] is comparatively minute and indeterminable; and the effect upon future taxation of any payment out of the funds [is] so remote fluctuating and uncertain that no basis[6] exists for the suit.

However in the case of Flast v. Cohen (1968) the Supreme Court carved out an exception to this ban on general taxpayer standing for plaintiff challenges under the establishment clause because it believed that the establishment clause operates as a specific constitutional limitation upon the exercise of Congress of the taxing and spending power conferred by Article I § 8 of the Constitution.[7] The Court supported this claim by citing some of the history surrounding the First Amendment which showed that the founders were particularly concerned about Congress using its taxing and spending power to favor one religion or denomination over another. This addition to the standing doctrine became known as the Flast exception. Thus any individual taxpayer automatically has standing to sue for a violation of the establishment clause.

The Hein Case

In the Hein case members of the Freedom from Religion Foundation (FFRF) on the basis of their status as taxpayers challenged the constitutionality of President George W. Bush’s faith-based initiative as a violation of the establishment clause. The faith-based initiative involves general appropriations by the executive branch that are used to aid and promote faith-based entities. The federal district court determined that FFRF’s members lacked standing because the Flast exception extended only to specific congressional expenditures of money not to discretionary spending distributed by the executive branch.

The Seventh Circuit Court of Appeals reversed concluding that the Flast exception should be expanded to allow taxpayer standing for challenges to any executive branch activity funded from appropriations for general administrative expenses because there is so much that executive branch officials could do to promote religion in ways forbidden by the establishment clause.[8] This expansion of the Flast exception as Judge Kenneth Ripple observed in dissent makes virtually any executive action subject to taxpayer suit because the executive can do nothing without general budget appropriations from Congress.[9] In its review the Supreme Court must decide whether the expansion of the Flast rule to include both congressional and general executive appropriations is constitutional.

No Standing No Exceptions

The basic dispute in Hein centers on whether the individual members of FFRF as taxpayers have standing to sue the executive branch for allegedly violating the establishment clause by distributing federal dollars to faith-based non-profit charity organizations. It is doubtful that the Seventh Circuit had the authority to expand the Flast exception beyond the parameters described by the Supreme Court in Flast. The logic of the Flast exception itself is also questionable. But prior to tackling any of that an honest legal analysis must explain why any individual possesses standing to sue under the First Amendment’s establishment clause.

The establishment clause provides that Congress shall make no law respecting an establishment of religion.[10] Plainly read this is a statement about congressional power and jurisdiction not a grant of an individual right to be free from religious establishment. No cases claimed this individual right until the late twentieth century. Instead the First Amendment’s prohibition on national religious establishments was a jurisdictional hedge meant to protect the religious status quo in the states at the time of the Constitution’s adoption.

The establishment clause is distinctive for what it does not say in comparison to the other clauses of the First Amendment. The other clauses speak of the free exercise of religion freedom of speech freedom of the press the right to peaceably assemble and the right to petition the government for redress of grievances. The establishment clause in stark contrast does not speak of a freedom but only a limitation on the congressional power concerning what was at the time a common state government institution: establishments of religion.[11] Unless we assume that the founders were not careful with their words this difference in wording between the establishment clause and the remaining rights enumerated in the First Amendment marks a difference in meaning. The difference is a focus on federalism”the division of power between the national and state governments”rather than individual rights.

Supreme Court Justice Clarence Thomas agrees with this interpretation[12] and the most prominent spokesman for the liberal interpretation of the Constitution Justice Stephen Breyer concedes that this is probably what the establishment clause meant at the time of its adoption.[13] The result of this close reading of the establishment clause is that the clause protects the states’ rights concerning religion while leaving concerns about individual rights regarding religion to the free exercise clause. Because the establishment clause does not confer an individual right an individual plaintiff has no standing to bring a suit under the clause in court.

The Flast Failure

The failure to recognize this distinction has produced an unnecessary and illogical deviation in the legal standing requirements of Article III of the Constitution. The Supreme Court originally invented the exception to taxpayer standing in Flast as Judge Ripple has explained so that tax- and expenditure-based violations of the establishment clause do not go unremedied.[14] This danger exists because of the inherent difficulty in enforcing the specific prohibition of the establishment clause against the expenditure of government funds for the establishment of religion.[15] The Supreme Court solved this perceived dilemma as mentioned above by claiming that the establishment clause operates as a specific constitutional limitation upon the exercise of Congress of the taxing and spending power conferred by Article I § 8.[16]

The problem with this rationale is that there is nothing in the wording of the establishment clause that specifically indicates it is peculiarly meant to curtail Congress’s taxing and spending power. This reading is a gloss the Supreme Court placed upon the provision solely based on its selective reading of history. There are characteristics of an establishment other than just financial support for a particular sect. At the very least it also includes the use of government force to compel certain beliefs or actions concerning religion.[17] So the clause was surely meant to address more than just the congressional power of the purse. Moreover even if the Court’s gloss is accepted there are several other provisions in the Constitution that may be characterized this way such as the commerce clause the due process clause of the Fifth Amendment and the Tenth Amendment.[18] The only discernable reason that the Court does not permit taxpayer standing to challenge actions under these provisions but does allow taxpayer standing in establishment clause cases is because it wants to do so.

While this desire may be well-intentioned it is wholly unnecessary. As the Court has observed in other contexts The Constitution has many commands that are not enforceable by courts because they clearly fall outside the conditions and purposes that circumscribe judicial action.[19] Some of the provisions that the Supreme Court has previously determined to be unenforceable in the courts include the guarantee clause of Article IV[20] the impeachment clause of Article I[21] and the duty that the laws must be faithfully executed.[22] It is not a truly novel idea that a constitutional provision such as the establishment clause is not enforceable by individuals through the courts. The Constitution leaves many functions in the hands of the legislative or executive branches without the oversight of the courts.[23] What would happen if Congress oversteps its authority and passes a law that tends toward an establishment of religion? The president could veto the law or decline to enforce it citing his oath to preserve protect and defend the Constitution.[24] Moreover because the establishment clause is a specific federalism provision the states are empowered to enforce the provision by bringing suits against the federal government under the clause. In this fashion state governments can protect the religious interests of their citizens. Should both the president and the states fail in their duty to prevent religious establishments the ballot box still remains as the ultimate enforcement of this constitutional command.[25]

The Scary Results

All of this means that the Supreme Court has unconstitutionally and unnecessarily opened the door to taxpayer plaintiffs with establishment clause grievances and the result has been a deluge of such challenges all over the country. Perhaps the single most famous establishment clause case in Supreme Court history (Lemon v. Kurtzman)[26] came about because of a taxpayer plaintiff.[27] More recently federal taxpayers were granted standing to sue a federal agency for giving grants to religious institutions performing services related to adolescent sexuality and pregnancy[28] a federal court green-lighted a taxpayer suit against the Department of Defense for its support of the Boy Scouts of America[29] and Indiana taxpayers were permitted to sue the state’s House of Representatives to halt prayers in the legislature.[30] There are far more productive topics on which these courts could spend their time if they did not have to weave their way through the mess of establishment clause law.

Given the feeble nature of the Supreme Court’s taxpayer standing rationale for establishment clause plaintiffs the Seventh Circuit’s hurdling of the Article I § 8 barrier to generalized taxpayer standing for such plaintiffs should not shock anyone. Having made one exception the Court has invited more to come because the exception weakens the general principle. In Hein the Supreme Court could rebuke this expansion of the Flast exception simply by observing that in case after case it has repeatedly turned down attempts to expand the Flast exception beyond its original boundaries.[31] But that is an argument based solely on precedent not logic. If the Court assents to this expansion of the Flast exception then it will open the door to the specter of a citizen bringing a lawsuit in a federal court to rectify undifferentiated injury.[32]

The reality of such a specter could obliterate the already precarious current limitations on judicial power because it would allow anyone to bring a lawsuit complaining about any government action. Extend the Seventh Circuit’s reasoning just a little bit and there could be individual suits challenging how much taxpayer money should go toward the war in Iraq or suits demanding that more money should be spent on developing alternative fuels and less on drilling for oil. While legitimate policy arguments can be made for either of these points they are not decisions that should be made in the courts. As the Supreme Court has recently observed The case-or-controversy limitation is crucial in maintaining the ˜tripartite allocation of power’ set forth in the Constitution.[33] Ignoring this limitation even when it concerns the First Amendment undermines our constitutional model.

Unless we desire a system in which all legislative and executive decisions are second-guessed in the courts the Supreme Court must stand firm on the standing doctrine. The most simple honest and logical way to do this is to apply the language of the establishment clause as it is written which does not confer standing to any individual plaintiff. Such a landmark decision would demonstrate the proper respect the Court owes to the written words of the Constitution and it would save judges from languishing any longer in establishment clause purgatory.

[1] ACLU of Ky. v. Mercer County Ky. 432 F.3d 624 636 (6th Cir. 2005).

[2] U.S. Const. Art. III § 2.

[3] Lujan v. Defenders of Wildlife 505 U.S. 555 560 (1992).

[4] Id. at 560-61.

[5] Id.

[6] Frothingham v. Mellon 262 U.S. 447 487 (1923).

[7] Flast v. Cohen 392 U.S. 83 104 (1968) (footnotes omitted).

[8] Freedom From Religion Foundation v. Chao 433 F.3d 989 995 (7th Cir. 2006).

[9] Id. at 1000 (Ripple J. dissenting).

[10] U.S. Const. Amend. I.

[11] At the time the First Amendment was adopted in 1791 five of the nation’s fourteen states (Vermont joined the Union in 1791) provided for tax support of ministers and those five plus seven others maintained religious tests for state office. Mark A. Noll A History of Christianity in the United States and Canada 144 (1992).

[12] The establishment clause does not purport to protect individual rights. By contrast the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion and the remaining Clauses within the First Amendment expressly disable Congress from ˜abridging [particular] freedom[s].’ Elk Grove Unified School Dist. v. Newdow 542 U.S. 1 49 (2004) (Thomas J. concurring in the judgment) (emphasis in original).

[13] In a December 42006 debate with Justice Scalia Justice Breyer admitted: If you go back [to the time of the First Amendment’s adoption] what people were probably thinking they probably thought [the establishment clause] only applied against the federal government and maybe the states could have established churches.

[14] Chao 433 F.3d at 998 (Ripple J. dissenting).

[15] Id.

[16] Flast 392 U.S. at 104 (footnotes omitted).

[17] See e.g. Lee v. Weisman 505 U.S. 577 640 (1992) (Scalia J. dissenting) (The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty) (first emphasis added).

[18] See e.g. Flast 392 U.S. at 129 n.18 (Harlan J. dissenting).

[19] Colegrove v. Green 328 U.S. 549 556 (1946).

[20] See Pacific States Telephone & Telegraph Co. v. Oregon 223 U.S. 118 (1912).

[21] See Nixon v. United States 506 U.S. 224 (1993).

[22] See Mississippi v. Johnson 71 U.S. 475 (1866).

[23] Colegrove 328 U.S. at 556.

[24] U.S. Const. Art. II § 1 para. 8.

[25] James Madison the Father of the Constitution described the people as the remedy of last resort ¦ who can by the elections of more faithful representatives annul the acts of the usurpers. The Federalist No. 44 (January 25 1788).

[26] 403 U.S. 602 (1971).

[27] Lemon v. Kurtzman 310 F. Supp. 35 42 (E.D. Pa. 1969).

[28] Bowen v. Kendrick 487 U.S. 489 618 (1988).

[29] Winkler v. Chicago School Reform Board of Trustees No. 99-C-2424 Slip Op. at 1 (Mar. 16 2005 N.D. Ill.).

[30] Hinrichs v. Bosma 400 F. Supp. 2d 1103 1110 (S.D. Ind. 2005).

[31] See e.g. Doremus v. Board of Education 342 U.S. 429 (1952); Schlesinger v. Reservists Committee to Stop the War 418 U.S. 208 (1974); and Valley Forge Christian College v. Americans United for Separation of Church and State 454 U.S. 464 (1982).

[32] Chao 433 F.3d at 997-98 (Ripple J. dissenting).

[33] DaimlerChrysler Corp. v. Cuno 126 S. Ct. 1854 1861 (2006) (quoting Valley Forge 454 U.S. at 474) (other citation omitted).

A defining characteristic of the current administration is its disregard for the constitutional principles of divided governmental authority and a system of checks and balances. The president seems unwilling to acknowledge the fundamental principle that executive actions and policies should be subject to congressional approval and judicial review.[1] An example of the president’s efforts to implement policy without the authorization of Congress and beyond the scope of judicial review has been the faith-based initiative.The faith-based initiative has its origins in a series of laws enacted in the late 1990s that opened the door to greater participation by religious charities in federally funded social service grants and programs (also known as “charitable choice”). These laws prohibit federal and state government agencies from excluding faith-based organizations (FBOs) from competing for government grants to provide services to the poor sick and infirm.[2] The provisions were largely unnecessary because religiously based charities such as Catholic Charities and the Salvation Army had long received government grants to fund their social service programs. What charitable choice did however was to open the door to the public funding of faith-infused programs such as drug treatment and job training programs that use scripture and salvation to transform the lives of beneficiaries. Under existing case law funding religiously infused programs violates the establishment clause of the First Amendment.[3]

Faith-Based Executive Power

George W. Bush ran for president in 2000 on a platform of expanding charitable choice. In his first executive order President Bush established the White House Office of Faith-Based and Community Initiatives (FBCI). The creation of similar faith-based offices in various federal departments and agencies quickly followed. The purpose of these offices was to promote the faith-based initiative to the religious community.[4] The FBCI quickly prepared a report “Unlevel Playing Field” that claimed to document systematic government discrimination against the more evangelical FBOs.[5] The White House then urged Congress to pass new legislation to expand charitable choice into every federal social service program. After Congress refused Bush issued another executive order directing federal agencies to add charitable choice provisions to existing programs.[6]

One function of the various faith-based offices has been to conduct regional conferences throughout the country to promote the faith-based initiative and encourage FBOs and community-based groups to apply for government grants. As reported by the nonpartisan Roundtable on Religion and Social Welfare Policy many of these government-sponsored conferences have been little more than hybrid political rallies/religious revivals complete with prayers inspirational songs and testimonials.[7] (I attended three regional conferences during the early 2000s and can attest to their religious character.) At these conferences FBCI officials provide information about the availability of government grants and the extent to which FBOs could integrate spiritual activities into their publicly funded services.

The faith-based initiative’s religious charter has resulted in several lawsuits challenging the constitutionality of the faith-based initiative pursuant to the establishment clause of the First Amendment of the Constitution. The establishment clause provides that “Congress shall make no law respecting an establishment of religion.” The American Civil Liberties Union the Americans United for Separation of Church and State and the American Jewish Congress have all been successful in challenging several government grants that have funded religious activity.[8] Another group the Freedom from Religion Foundation (FFRF) is attempting to go one step further: In addition to challenging specific monetary grants to faith based organizations FFRF has challenged the constitutionality of the government sponsorship of seminars and conferences to encourage religious groups to seek federal grants through the faith-based initiative. These conferences are funded through a general discretionary executive appropriation rather than a specific congressional appropriation. This is the case of Hein v. Freedom from Religion Foundation currently before the Supreme Court.

In Hein FFRF claims that it has the right to sue as a taxpayer for an establishment clause violation relating to the expenditure of funds to support the conferences. The federal government acknowledges that FFRF has standing to challenge specific grants to faith-based organizations but has no legal right to challenge the sponsorship of conferences or statements by administration officials touting the “power of faith to change lives.” The government argues that since the spending decisions regarding conferences and seminars are made by the executive branch and do not involve earmarked congressional appropriations the FFRF does not have a legal right to bring suit. Thus the issue in Hein is whether taxpayer status alone is enough to allow a challenge under the establishment clause of the Constitution.

On the Flast Track

The Supreme Court has for eighty-five years maintained a rule that prohibits taxpayers from challenging federal spending and taxing policies based solely on their status as taxpayers. As the Court held in Frothingham v. Mellon (1921) a taxpayer’s interest in the monies of the federal treasury are too “indeterminable . . . remote fluctuating and uncertain” to support the personal and cognizable injury necessary to confer standing to sue in federal court.[9] However an exception to this rule was created by the Supreme Court in the case of Flast v. Cohen (1968). When government funds are being used to aid in the establishment of a religion taxpayers may challenge the expenditure as a violation of the establishment clause. In Flast the high court held that the “specific evils feared” by the drafters of the First Amendment “was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Therefore a taxpayer could bring a challenge to an alleged unconstitutional expenditure even though her injury took on a generalized quality.[10]

The Flast rule was later narrowed in Valley Forge Christian College v. Americans United for Separation of Church and State (1982) which held that taxpayer standing under the establishment clause was limited to expenditures arising under the Article I § 8 tax and spend clause but did not extend to expenditures authorized under other sections of the Constitution. But language in Valley Forge by Justice William Rehnquist suggested that Flast taxpayer standing was allowed only for challenges to “exercises of congressional power” and not to “the action of the executive branch.”[11]

Thus Hein raises a fundamental constitutional question: Are the president’s actions and policies immune from suit and review by the judicial branch when they involve conduct and expenditures that are discretionary and not mandated by legislative action? This is a particularly pertinent question when the nation has a president who openly touts his faith experience and actively encourages religious solutions to today’s social problems. Likely millions of public dollars have been spent to promote the president’s belief in the transforming power of faith. Should this expenditure be subject to judicial review?

Restricting All Branches of Government

In earlier cases the Supreme Court has written that the essence of a religious establishment prohibited by the establishment clause is found in the “sponsorship financial support and the active involvement of the sovereign in religious activity.”[12] As a result the Flast Court recognized the necessity of allowing the taxpayer to have standing acknowledging that the injury of an unconstitutional sponsorship of religion was shared in common by all citizens. According to the Court:

One of the specific evils feared by those who drafted the establishment clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general. . . . The concern of [James] Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if government could employ its taxing and spending powers to aid one religion over another or to aid religion in general.[13]

Rather than being “unnecessary” or “unconstitutional” taxpayer standing ensures government accountability when the political process is unlikely to provide a remedy. As such it should be irrelevant as to which branch of government commits the constitutional injury. Judge Richard Posner of the Seventh Circuit recognized as much in his lower court opinion noting that the line proposed by the government is “artificial” because “there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause . . . without making outright grants to religious organizations.” The fact that the conferences in question were funded out of “general rather than earmarked appropriations” that it was an executive rather than a congressional program “does not deprive taxpayers of standing to challenge it” Posner wrote.[14]

The government has reverted to “proof-texting” pointing out that the First Amendment says “Congress shall make no law respecting an establishment of religion” and that the Court in Valley Forge restricted standing to challenges arising under the Article I § 8 spending power. But the Court has long recognized that the Bill of Rights restricts actions of the government generally executive and legislative branches alike. Moreover the framers of the religion clauses were reacting to systems of religious establishments that had been created and perpetuated by the king as well as Parliament. Because the new federal government was one of enumerated powers “with the power of the purse vested entirely in Congress” and the president executed the law rather than created it there was little reason for the first Congress to write the language of the First Amendment to prohibit actions of the president as well.[15] But the framers fully understood the threat of executive establishments and would not have been indifferent to the risk that such establishments might occur in this country.

In addition the evils of religious establishments had not historically been limited to financial extractions and expenditures on behalf of religion. Establishment of state religion had also been enforced by awarding civil rights and privileges based on proper religious affiliation. Derived from the Test and Corporation Acts colonial establishments in America commonly limited rights of public office holding to Protestants and imposed religious requirements that affected nonconformists’ access to legal and political institutions.[16]

The framers did away with this arrangement in the Constitution under the “test clause” which provided that “no religious test shall ever be required as a qualification to any office of public trust under the United States.”[17] The extensive ratification debate over the test clause indicates that the founding generation perceived the attributes of religious establishments to extend beyond the mere financial support of religion to matters that affected one’s standing and participation in the larger political community.[18] The president in conjunction with the other branches of government was made subject to the test clause. The test clause thus prevents one form of establishment by the executive.[19] Just as the framers would have presumed that the president is equally barred from establishing a religion they would have insisted that he not be immune from accountability for his actions.

Is the First Amendment Federal Only?

The response by Greg Jones is that not all constitutional controversies are necessarily subject to judicial review (e.g. see taxpayer standing generally) and that some injuries are better redressed by the political process. Bolstering this response is the claim that the establishment clause is primarily about federalism”the division of powers between the national and state governments”and not about individual rights. If federalism is the principal value underlying the establishment clause Jones argues then such controversies are best resolved by the political branches.

The problem with this argument is that it grossly overstates the federalism aspect to the establishment clause. That the members of the first Congress viewed the Bill of Rights as restricting federal power vis-Ã -vis the states is not profound; to claim that the framers intended the establishment clause to protect the ability of states to maintain religious establishments is a perversion of history. By the time of the drafting of the First Amendment religious establishments existed in only four states and they were all on life support. Religious establishments were highly unpopular “propped up by the intransigent standing order” and generally viewed as inconsistent with freedom of conscience. Even supporters in New England denied that they maintained religious establishments due to their negative connotations. As a result the drafters of the First Amendment had little reason to contest the moribund New England establishments which they (correctly) knew would be abolished. But at the same time the framers did not view the purposes of the establishment clause primarily in jurisdictional terms. On the contrary the literature of the era clearly indicates that contemporaries viewed establishments in terms of rights-infringing not as a jurisdictional issue. The reported debates of the drafting in the First Amendment indicate that the majority of members absent the comments of one member viewed the proposed amendment as having a substantive quality. Subsequent letters of Thomas Jefferson and James Madison the two framers most responsible for the principles enshrined in the religion clauses reveal that they viewed the establishment clause as substantive not jurisdictional. Significantly both men considered themselves bound by the establishment clause when they served as president.[20]

For more than sixty years the modern Supreme Court has viewed both interests contained in the religion clauses as concerning individual rights. That is why the resolution of such controversies is not left to the political process. Justice Robert Jackson said it best:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.[21]

If the government’s distinction between congressional and executive actions is accepted by the Court then executive expenditures that advance religion or even favor one religion over others would be potentially immune from challenge if they involved a discretionary funding source rather than a clear “statutory mandate.” As Judge Posner hypothesized in his opinion there would be nothing to stop the secretary of homeland security from using unearmarked funds from his budget to build and fund an Islamic mosque that would support U.S. foreign policy on the assumption it would reduce Islamist terrorism in the country. As Justice Brennan noted in his Valley Forge dissent it is likely that the framers were more concerned about government expenditures on behalf of religion and less concerned about the funding mechanism. That principle and history should hold true in this situation. Unfortunately the Hein case invites the Court to engage in more artificial line-drawing.

[1] Magna Carta June 151215 reprinted in Neil H. Cogan ed. Contexts of the Constitution (1999) pp. 657-666; Marbury v. Madison 5 U.S. 137 (1803).

[2] See 42 U.S.C. § 604a (2000).

[3] See Mitchell v. Helms 530 U.S. 793 837 (2000) (O’Connor J. concurring in the judgment); Bowen v. Kendrick 487 U.S. 589 610-612 (1988).

[4] See Exec. Order 13199 (Jan. 29 2001) reprinted in 66 Fed. Reg. 8499 (Jan. 31 2001).

[5] The White House Unlevel Playing Field: Barriers to Participation by Faith-Based and Community Organizations in Federal Social Service Programs (2001) available at http://www.whitehouse.gov/news/releases/2001/08/unlevelfield.html. For an analysis see Steven K. Green “‘A Legacy of Discrimination?’ The Rhetoric and Reality of the Faith-Based Initiative: Oregon as a Case Study” 84 Ore. L. Rev. 725 (2005).

[6] See Executive Order 13279 (December 2002).

[7] See The Expanding Administrative Presidency: George W. Bush and the Faith-Based Initiative The Roundtable on Religion and Social Welfare Policy (August 2004) at 15.

[8] See for example Americans United v. Prison Fellowship Ministries 432 F. Supp.2d 862 (S.D. Iowa 2006); Freedom From Religion Foundation v. McCallum 179 F. Supp. 2d 950 (W.D. Wis. 2002).

[9] Frothingham v. Mellon 262 U.S. 447 487 (1921).

[10] Flast v. Cohen 392 U.S. 83 103 (1968).

[11] Valley Forge Christian College v. Americans United for Separation of Church and State 454 U.S. 464 479 (1982).

[12] Walz v. Tax Commission 397 U.S. 664 668 (1970) (“for the men who wrote the Religion Clauses of the First Amendment the ˜establishment’ of a religion connoted sponsorship financial support and the active involvement of the sovereign in religious activity.”).

[13] 392 U.S. at 103-104.

[14] Freedom From Religion Foundation v. Chao 433 F.3d 989 995 (7^th Cir. 2006).

[15] Madison wrote that the President “cannot of himself make a law though he can put a negative on every law; nor administer justice in person though he has the appointment of those who do administer it.” The Federalist No. 47 (James Madison).

[16] See Comments of James Iredell supra note 22 at 193 (discussing the Test and Corporation Acts); Franck supra note 5 at 615“16.

[17] U.S. Const. art VI cl. 3.

[18] See generally 4 The Founders’ Constitution 634“45 (Philip B. Kurland & Ralph Lerner eds. 2005).

[19] The Framers did not view the Test Clause as the only check on the executive’s ability to establish religion. The debates surrounding the Establishment Clause illustrate the applicability of the Clause to branches other than Congress: when it was suggested that the Establishment Clause bound the judiciary branch Madison did not disagree with such an interpretation. See Douglas Laycock The Origins of the Religion Clauses of the Constitution: “Nonpreferential” Aid to Religion: A False Claim About Original Intent 27 Wm. & Mary L. Rev. 875 889“92 (1986).

[20] For a more detailed discussion see Steven K. Green “Religion Clause Federalism: State Flexibility Over Religious Matters and the ˜One-Way Ratchet’” 56 Emory L. J. 109 (2006); Steven K. Green “Federalism and the Establishment Clause: A Reassessment” 38 Creighton L. Rev. 761 (June 2005).

[21] West Virginia State Board of Education v. Barnette 319 U.S. 624 638 (1943).

Two tendencies that are prominent in the country today are the elevation of personal dislikes to the level of constitutional violations and the assumption that all such violations are to be remedied by the courts. If someone does not like a certain government policy he or she often assumes that said policy must in some way violate the Constitution and that he or she can sue to correct the violation. Steven Green’s response represents a variation on this theme as he styles the Hein v. Freedom from Religion Foundation case as yet another line in the story of the supposedly imperial Bush presidency which must be stopped lest Bush become the tyrant of our age. However the Hein case is not about a rogue president. It is not about the constitutionality of the administration’s faith-based initiative. It is not even about the propriety of giving taxpayer dollars to faith-based social programs. The issue is legal standing for individual taxpayer plaintiffs under the establishment clause of the First Amendment. Little of Professor Green’s response addresses this issue and the portion that does takes liberties with logic the law and First Amendment history.Green may not like many of President Bush’s policies. He may not like the idea of funding faith-based social programs with taxpayer dollars. He may not like spinach. However simply disliking something does not confer a right to waltz into a courtroom to challenge these things as unconstitutional. Likewise the mere fact that a citizen pays taxes does not mean he or she is automatically entitled to challenge government policies in court. Indeed the general rule is exactly the opposite: Taxpayers lack standing to challenge the constitutionality of a government action.[1] Flast v. Cohen[2] introduced “incorrectly in my view” a single narrow exception to the general rule for establishment clause challenges involving “exercises of congressional power under the taxing and spending clause of Article I § 8 of the Constitution.”[3]

Standing Ground

Green offers one justification for expanding this exception to permit taxpayer standing for all establishment clause challenges: “ensur[ing] accountability of government action when the political process is unlikely to provide a remedy.”[4] This justification addresses neither the reason that the Supreme Court limited the scope of the Flast exception in the first place nor the fact that not all constitutional violations are to be remedied through litigation. The Supreme Court limited taxpayer standing to constitutional challenges to congressional expenditures because only Congress can extract and spend taxpayer money specifically in aid of religion.[5] The Court has denied standing in several cases alleging establishment clause violations when the claim did not involve congressional spending under Article I § 8.[6] The lack of an alternative remedy does not justify the expansion of the Flast exception even by the Court’s own reasoning.

More generally it is not rational to decimate standing principles based on the pure speculation that the political process might not provide a remedy for an alleged establishment clause violation. The mere fact that as Judge Posner said “there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause” if taxpayer standing is not allowed does not ipso facto mean that taxpayer standing must be granted in these cases.[7] For example if Congress passed a joint resolution declaring one religion to be the national faith it plainly would not give rise to taxpayer standing because no expenditure of funds would be involved. Such a congressional action would have to be dealt with by some means other than a taxpayer lawsuit because there are limits on judicial power.

The whole purpose of the standing doctrine is to ensure that the proper party has brought a proper legal claim into court. The Supreme Court recently emphasized that determining standing “assumes particular importance in ensuring that the federal judiciary respects the proper” and properly limited “role of the courts in a democratic society.”[8] Allowing taxpayer standing for any government action related to the establishment clause fails to respect the limited role of the judiciary. As Justice John Marshall Harlan II observed in his dissent in Flast “There is every reason to fear that unrestricted public actions might well alter the allocation of authority among the three branches of the federal government. . . . I do not doubt that there must be some effectual power in the government to restrain or correct the infractions’ the Constitution’s several commands but neither can I suppose that such power resides only in the federal courts.”[9] Green seems oblivious to the fact that some possible constitutional violations do not implicate a judicial remedy but rather depend on other entities such as the executive and the powers of the states.

Federalism and the Establishment Clause

As free as Green is willing to be with the doctrine of standing he is even more willing to take liberties with the history of the establishment clause. He is correct that the framers of the First Amendment were reacting in part to the establishment of a national church in England but they were also acting upon the entrenched presence of religious sects in the states.[10] Green’s unsubstantiated claim to the contrary notwithstanding religious establishments of one kind or other were alive and well at the time of the First Amendment’s adoption.[11] Because of this the founders sought to avoid the pitfalls of a national religion while allowing the states to incorporate religion in government in any manner they deemed appropriate.[12] It is undisputed that the entire Bill of Rights was not originally meant to apply to the states.[13] Even the most ardent advocates of an expansive view of the First Amendment admit that the establishment clause protected the states in their religious diversity.[14] Thus history teaches that the establishment clause was a federalism provision intended to maintain the status quo regarding religion throughout the country while a new national government handled other pressing matters.

Yet the argument that the establishment clause does not confer a right upon individuals that can be vindicated in the courts does not rest solely on the “federalism aspect” of the clause. It rests on the words of the clause itself a point that Green disparages with the apparently now pejorative term “proof-texting the First Amendment.” The clause states: “Congress shall make no law respecting an establishment of religion.”[15] It does not mention a right of any kind as do the other parts of the amendment in listing the free exercise of religion the freedom of speech the freedom of the press and so on. It is irrelevant whether Thomas Jefferson or James Madison felt bound by the clause when each served as president of the United States[16] because the issue is whether ordinary individuals are empowered under the clause to bring lawsuits in the federal courts regarding alleged establishments of religion. Both the language and history of the establishment clause indicate that individuals should be denied standing in the federal courts.

The Train Wreck of First Amendment Jurisprudence

Despite my disagreements with Green I heartily agree that it is unfortunate that “the Hein case invites the [Supreme] Court to engage in more artificial line-drawing.”[17] The Supreme Court may have “viewed both interests contained in the religion clauses as concerning individual rights” over the last sixty years[18] but the Court’s establishment clause jurisprudence has been an absolute train wreck during that time.[19] The Flast exception and the Seventh Circuit’s expansion of it is part of the mess a part that endangers other areas of the law because it erodes the bedrock legal principle of standing. Rather than perpetuate this artificial exception the Court should take the opportunity the Hein case provides to return to the original understanding of the establishment clause that denies individual causes of action. This would eliminate the headache of adjudicating many of these cases and rejuvenate the standing doctrine’s purpose of keeping the federal courts within their limited and defined role in our constitutional system.

[1] Bowen v. Kendrick 487 U.S. 589 618 (1988).

[2] 392 U.S. 83 (1968).

[3] Id. at 102.

[4] Steven K. Green The Immune Presidency? www.publicsquare.net.

[5] DaimlerChrysler Corp. v. Cuno 126 S. Ct. 1854 1865 (2006).

[6] See e.g. Doremus v. Board of Education 342 U.S. 429 (1952); Schlesinger v. Reservists Committee to Stop the War 418 U.S. 208 (1974); and Valley Forge Christian College v. Americans United For Separation of Church and State 454 U.S. 464 (1982).

[7] Freedom From Religion Foundation v. Chao 433 F.3d 989 995 (7th Cir. 2006).

[8] Cuno 126 S. Ct. at 1860 (quoting Allen v. Wright 468 U.S. 737 750 (1984)) (other citation omitted).

[9] Flast 392 U.S. at 130 (Harlan J. dissenting) (quoting Missouri Kansas & Texas R. Co. of Texas v. May 194 U.S. 267 270 (1904)) (footnotes omitted).

[10] Supreme Court Justice Joseph Story in his Commentaries on the Constitution explained that the aim of the Establishment Clause was to “prevent any national ecclesiastical establishment which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages) and of the subversion of the rights of conscience in matters of religion . . . . The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New England the land of the persecuted puritans as well as other colonies where the Church of England had maintained its superiority would furnish out a chapter as full of the darkest bigotry and intolerance as any which could be found to disgrace the pages of foreign annals.” Joseph Story Commentaries on the Constitution vol. III p. 728 (1833).

[11] Church historian Mark Noll relates: At the time the First Amendment was adopted in 1791 “five of the nation’s fourteen states (Vermont joined the Union in 1791) provided for tax support of ministers and those five plus seven others maintained religious tests for state office. Only Virginia and Rhode Island enjoyed the sort of separation of church and state’ that Americans now take for granted”government providing no tax money for churches and posing no religious conditions for participation in public life.” Mark A. Noll A History of Christianity in the United States and Canada 144 (1992).

[12] “Such leaders as James Madison realized how explosive and how complicated the question of religion was throughout the nation. Any effort to establish one particular faith would have drawn violent protests from adherents of other faiths. Any effort to deny the importance of religion would have deeply offended the substantial numbers who still believed that that the security of a nation depended on the health of its faith. The compromise chosen by the founding fathers was to avoid the issue. . . . . By leaving such matters to the states it was hoped they could establish a government for the nation without being forced to decide what the nation’s religion should be.” Noll supra note 11 at 145.

[13] See Barron v. Baltimore 32 U.S. 243 (1833).

[14] As I noted in my original writing Justice Stephen Breyer the vocal advocate for a broad interpretation of the Constitution admitted in a December 4 2006 debate with Justice Scalia that ““If you go back [to the time of the First Amendment’s adoption] what people were probably thinking they probably thought [the Establishment Clause] only applied against the federal government and maybe the states could have established churches.”

[15] U.S. Const. Amend. I.

[16] It is interesting that Professor Green points to Jefferson and Madison”the two Founders with the strictest views on church-state separation”while he avoids the views of George Washington John Adams and every other President of the era as well as the views of the Congress that framed the amendment and the states which adopted it. Other Presidents never gave any indication of feeling bound by the amendment beyond their duty to sign or veto legislation based on whether they believed it to be within Congress’s delegated powers under the Constitution. The states never would have adopted an amendment that could endanger their existing regimes. Even so Madison stated when he introduced the First Amendment that he “apprehended the meaning of the [Establishment Clause] to be that Congress should not establish a religion and enforce the legal observation of it by law nor compel men to worship God in any manner contrary to their conscience.” 1 Annals of Cong. 757 (1789) (Gales & Seaton’s ed. 1834) (emphasis added).

[17] Green supra note 4.

[18] Ibid.

[19] A majority of the justices on the Supreme Court at different times has expressed frustration with the state of the law in this area several courts of appeal have remarked on the uncertainty of the law concerning the Establishment Clause and district courts around the country regularly register complaints about the difficulty of applying the Supreme Court’s precedents on this front. See e.g. ACLU of New Jersey v. Schundler 104 F.3d 1435 1437 (3rd Cir. 1997); Koenick v. Felton 190 F.3d 259 263 (4th Cir. 1999); Helms v. Picard 151 F.3d 347 350 (5th Cir. 1998) rev’d sub nom. Mitchell v. Helms 530 U.S. 793 (2000); ACLU of Ky. v. Mercer County Ky. 432 F.3d 624 636 (6th Cir. 2005); Books v. Elkhart County Indiana 401 F.3d 857 863-64 (7th Cir. 2005); Bauchman for Bauchman v. West High Sch. 132 F.3d 542 561 (10th Cir. 1997); Twombly v. City of Fargo 388 F. Supp. 2d 983 986 (D. N.D. 2005); Card v. City of Everett 386 F. Supp. 2d 1171 1173 (W.D. Wash. 2005); Newdow v. Congress 383 F.3d 1229 1244 n.22 (E.D. Cal. 2005); and Green v. Bd. of County Comm’rs of the County of Haskell 450 F. Supp. 2d 1273 1284-85 (E.D. Okla. 2006).