No Taxation without Separation: The Supreme Court Passes on an Opportunity to End Establishment Clause Exceptionalism: Hein V. Freedom from Religion Foundation, Inc

Article excerpt

The Supreme Court generally denies plaintiffs standing to challenge the constitutionality of government expenditures if their only basis for standing is that they pay taxes. (1) The Court, however, has created one exception: for taxpayers challenging alleged Establishment Clause violations. (2) This Establishment Clause exception has been criticized, challenged, and narrowed by subsequent cases but never overruled. (3) Last Term, the Court passed on yet another opportunity to overturn the maligned taxpayer standing exception. In Hein v. Freedom From Religion Foundation, Inc., (4) a plurality of the Supreme Court held that federal taxpayers lacked standing to challenge conferences and speeches that promoted the Faith-Based and Community Initiatives, a program created by executive order and funded through general executive branch appropriations. (5) Although Hein denied the plaintiffs standing, the plurality implicitly accepted and perpetuated the premise of the misguided precedents recognizing taxpayer standing: that the nature of the claim can compensate for a plaintiff's otherwise inadequate standing position.

In 2001, President Bush issued executive orders creating the White House Office of Faith-Based and Community Initiatives and Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments. (6) The White House Office and Executive Department Centers were "'created entirely within the executive branch ... by Presidential executive order.'" (7) No congressional legislation authorized their creation, and no law specifically appropriated any money for their activities; the White House Office and Executive Department Centers were "funded [entirely] through general Executive Branch appropriations." (8)

Freedom From Religion Foundation, Inc., a corporation "opposed to government endorsement of religion," (9) and three of its members brought a lawsuit against the directors of the White House Office and Executive Department Centers. (10) They argued that the directors "violated the Establishment Clause by organizing conferences at which faith-based organizations allegedly "are singled out as being particularly worthy of federal funding'" and are favored over secular groups. (11) "The only asserted basis for standing was that the individual [plaintiffs were] federal taxpayers ... 'opposed to the use of Congressional taxpayer appropriations to advance and promote religion.'" (12)

As a general rule, plaintiffs do not have standing to sue the government when the only harm alleged is that their federal taxes are being spent in an unconstitutional manner. (13) The plaintiffs in Hein claimed standing under an exception to the taxpayer standing prohibition that the Supreme Court created in Flast v. Cohen. (14) In Flast, the Supreme Court held that federal taxpayers had standing to challenge exercises of congressional power under the Taxing and Spending Clause of Article I, Section 8 that allegedly violate the Establishment Clause of the First Amendment. (15)

The United States District Court for the Western District of Wisconsin held that the taxpayer-plaintiffs in Hein did not meet the Flast exception for standing and dismissed their claims. (16) The taxpayers, the court reasoned, were not challenging an exercise of congressional power, because the government directors acted "at the President's request and on the President's behalf" and were not "charged with the administration of a congressional program." (17) Insofar as the defendants' "actions did not represent congressional power," the Flast exception did not apply. (18)

The Seventh Circuit reversed. (19) Judge Posner authored the majority opinion, which held that the plaintiffs did have standing under the Flast exception because the challenged activities were "financed by a congressional appropriation." (20) Judge Posner reasoned that the Flast exception applied in all cases in which the allegedly unconstitutional government actions resulted in a net marginal cost to the taxpayer greater than zero. …