A Winn for Originalism Puts Establishment Clause Reform within Reach

Article excerpt

In Flast v. Cohen, 1 the Supreme Court held that taxpayers could bring suits challenging government expenditures alleged to violate the Establishment Clause. Flast was a pivotal decision implicating two of the most difficult areas of constitutional law, the volatile interplay of law and religion, 2 and the complex justiciability doctrines the Court uses to determine its jurisdiction under Article ΠΙ.3 In Flast the Court took up this task as part of its effort to harmonize two fundamental interests, the government's power to tax and spend for the general welfare on the one hand, and our individual right to religious liberty on the other.4 But Flast has proven deeply problematic, with two sitting Justices and prominent academics calling for its reversal.5

The Court's most recent effort to deal with the troubled legacy of Flast is Arizona School Tuition Organization v. Winn, 6 in which the Supreme Court rejected a tax-payer challenge to a tuition tax credit that benefitted religious schools advanced under Flast.1 Although decided only last term, Winn has already been criticized as being inconsistent with Flast and the original understanding of the Establishment Clause.8

I disagree. Quite the contrary, I believe that Winn puts the Supreme Court within reach of a comprehensive reform of its taxpayer standing doctrine that is both principled and consistent with the original understanding of the provision. For the same reason, I do not believe that Flast needs to be overruled in order to address the serious problems the decision has created; it simply needs to be limited along the lines suggested by Winn.

In Winn, the Supreme Court recognized that in order to demonstrate standing under the Establishment Clause a taxpayer must be able to show a personal injury caused by the use of the taxing power; more specifically, that the government has used its taxing power to "extracft]" money from the taxpayer that is later used to support religion.9 Winn makes plain that a taxpayer cannot show the injury needed to support standing simply by pointing to a use of the taxing power that provides some generalized benefit to religious institutions. 10 Much needed reform of Flast can be achieved simply by employing the more refined focus used in Winn to isolate the precise spending of public funds that creates a taxpayer injury that is cognizable under the Establishment Clause.

The Court should recognize that the type of spending that violates the Establishment Clause, creating the taxpayer injury cognizable under the Establishment Clause, is an extremely narrow category of expenditures that use public funds to support what the Court has called "inherently religious" activity. 11 In so doing, the Court will obviate the basis for taxpayer challenges to the vast range of spending programs through which government and religious entities cooperate to advance legitimate social goals. It will do so by recognizing that the Establishment Clause was not understood to bar spending programs that advance secular goals through providing funding to religious organizations, even if such spending provides a collateral benefit to religious institutions, and consequently, that such programs do not give rise to a taxpayer injury cognizable under the Establishment Clause. The Court has an historic reform of its precedent within reach.

In Part I, I briefly sketch the original understanding of the Establishment Clause and show that it was not understood to prohibit spending programs that extended benefits to religious institutions providing general social welfare services. I argue that while the rationale for taxpayer standing in Flast is consistent with the original understanding of the First Amendment, the actual holding in Flast represented an historically unsupported and unsound expansion of claims that were cognizable under the Establishment Clause. 12

In Part II, I survey Supreme Court cases entertaining challenges to spending programs that conferred some arguable benefit on religious entities from Flast through Mitchell v. …


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