Greg Jones is a constitutional law attorney for the Foundation for Moral Law, a nonprofit Christian legal organization in Montgomery, Alabama, that defends religious liberty.

 

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Synopsis

April 18, 2007

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.”