Spring 2012, Vol. 14, No. 1

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Spiritual Politics
Mark Silk's blog
on religion and politics 

Table of Contents

From the Editor:
It's Baaack...

Religion and the Awakening

Repaving the Arab Street

Bishops in the Dock

Faithless Ireland

No Love for

The New Dominionist Politics


Without Benefit of Clergy

Cirque d'OCA

No Standing for It



No Standing for It
by Marc D. Stern

An obscure Supreme Court case decided late last spring, Arizona Christian School Tuition Scholarship Organization v. Winn (ACSTO), threatens to close the federal courts to a wide range of significant complaints that government is unconstitutionally supporting or furthering religion.

The case involved a tax credit scheme to encourage private donations to organizations funding scholarships for children to attend private and religious schools. The Court found that plaintiffs could not bring the suit as taxpayers because the government did not actually spend its own money; it merely refused to tax certain income shielded by the credit.

The exact holding of the case may be limited to tax credits, but its broad rhetoric deprecates the importance of federal court enforcement of the separation of church and state. Lower courts have taken the hint.

The Freedom From Religion Foundation (FFRF) brought suit last year in a federal district court in Milwaukee to challenge the annual National Day of Prayer which Congress has long obligated the President to proclaim. The organization asserted that the statute amounted to an official repudiation of atheism, marking atheists as second class citizens. It prevailed on the merits in the District Court. It lost in the U.S. Court of Appeals for the Seventh Circuit, but not on the merits.

The appeals court, citing ACSTO, held that FFRF lacked “standing”—that is, it did not have a right to advance this particular legal claim—because it had not suffered an injury recognized as such by the Constitution. The court nominally left the constitutional question about the day of prayer unanswered. Citing that decision, a district court in Texas in turn dismissed for want of standing an even more substantial challenge by atheists to Texas Governor Rick Perry’s blatantly unconstitutional Christian Day of Prayer.

Standing is not always an obstacle to litigating Establishment Clause issues. A Texas pastor has challenged a supposed decision by the Veteran’s Administration to prohibit sectarian prayers in a national cemetery. (The government denied having such a prohibition, and the matter has since settled.)

The pastor claimed in his lawsuit that he was told the restriction was required by the Establishment Clause. He plainly had standing to litigate the correctness of that view—because he himself was prevented from doing something. But if the policy had been to allow sectarian prayers, it’s not clear that an atheist attending events at the cemetery would have standing to bring a challenge raising exactly the same legal question, but from the perspective of someone who is not being prevented from doing anything.

“For every right there is a remedy” is a legal maxim dating at least to the great 18th-century English jurist William Blackstone. The U.S. Supreme Court, however, has for some time proceeded on a very different assumption, driving an increasingly broad wedge between violation and judicial relief. Invoking the doctrine of standing to deny persons complaining of alleged constitutional violations a day in court is an increasingly common judicial technique.

The Supreme Court insists that it is motivated solely by a desire to insure against federal judicial self-aggrandizement and preserve the independence of political branches. But the Court’s increasingly high standards for standing in church-state cases may equally well be seen as a way of silently permitting establishments of religion where no one is hurt in a tangible way, while leaving the courthouse doors open to challenges to church-state separation (where the person denied access or a subsidy suffers a tangible harm). Absent standing, there is no “case” to decide. By constitutional command, courts may only decide “cases and controversies.”

Most of the Supreme Court litigation about Establishment Clause standing has come in funding challenges. Looming on the horizon, though, are confrontations about standing to challenge symbolic endorsements of prayer, religious holidays, and religious symbols, such as the Ten Commandments or public days of prayer.

To understand how we got to where we are, a bit of history is essential.

Discussion best begins with Flast v. Cohen (1968), a lawsuit brought to challenge the 1965 federal education law that provided for aid to both public and religious schools. The suit was met with the objection that the Supreme Court in a 1923 decision (Mellon v. Frothingham) denied taxpayers standing to assert claims that Congress was making expenditures of money beyond the scope of its constitutional authority.

The Flast majority allowed the challenge to funding religious schools to proceed where measurable expenditures are made to benefit religion. If the expenditures would have been made anyway (e.g., the portion of a teacher’s salary attributable to leading a class in prayer), Flast standing will not exist. Flast first found that the constitutional limit on the power of the federal courts to decide “cases or controversies” was no obstacle to taxpayer suits. It then determined that, as a matter of “prudence” it would allow taxpayer suits to proceed where two essential criteria were met:

(1) the act challenged is related to the taxpayer’s status as a taxpayer, e.g. that Congress acted under its power to tax and spend for the general welfare, not some other constitutional power; and

(2) the taxpayer be alleging a violation of a clause of the Constitution that imposes “specific…limitations upon the exercise of the congressional taxing and spending power.”

Generations of law students—to say nothing of lawyers—have struggled to understand Flast. No case has identified a constitutional provision that satisfies Flast other than the Establishment Clause.

Next came Valley Forge Christian College v. Americans United (1982), a challenge by a well-known church-state separation group (Americans United for the Separation of Church and State)[1] to a gratuitous transfer of surplus government property to a Bible college. The government proposed to give the property to the college under a statute enacted under a constitutional provision allowing government to dispose of surplus property.

Americans United asserted both taxpayer and citizen standing, alleging that the transfer was an unconstitutional subsidy of religion. The Supreme Court rejected both submissions.

The taxpayer claim failed because the decision to deed the property to the College was an administrative one, not a congressional one, and because Congress had acted not under its taxing power but under its power to dispose of surplus property under Article IV. Hence Flast, a case about Article I taxing powers, did not control. Why should these distinctions make the case less fit for adjudication? The Court did not say.

With respect to citizen standing, the majority quickly rejected the idea that standing rules should be loosened in Establishment Clause cases, lest the provision be under-enforced:

Implicit in the [argument] is the philosophy that the business of the federal courts is correcting constitutional errors, and that “cases and controversies” are at best merely convenient vehicles for doing so and at worst nuisances that may be dispensed with when they become obstacles….This philosophy has no place in our constitutional scheme. It does not become more palatable when the underlying merits concern the Establishment Clause.

The Court emphasized that standing did not exist when the plaintiffs asserted a grievance shared with the citizenry as a whole. Civil society, it asserted, does not enjoy a “roving commission” to police constitutional guarantees without regard to the existence of traditional, individualized, kinds of injury.

Despite technical differences, it is hard to resist the conclusion that the major distinction between Flast and Valley Forge was the composition of the Court, with the switch in results due largely to the substitution of members of the Warren Court by Nixon and Reagan appointees (except for Justice Blackmun, a Nixon appointee, who joined the dissenters urging standing).

The Court’s reference to the decision in Valley Forge being made by an administrative agency, and therefore outside of Flast, gave rise to a standing challenge in Bowen v. Kendrick (1995), an Establishment Clause challenge to a precursor of the faith-based (charitable choice) initiative.

Plaintiff taxpayers had challenged grants made under a program advocating teenage chastity. The government asserted that the taxpayers lacked standing because the grants were issued not by Congress but by an administrative agency. Chief Justice William Rehnquist (the author of Valley Forge) curtly rejected the claim, noting that Congress had required the agency to include religious programs. Hence, the Flast requirements were met.

The next challenge brought by atheist taxpayers was to a relatively inconsequential feature of President Bush’s faith-based initiative. In connection with that program, the White House organized conferences geared to encouraging religious social welfare programs. In the course of one such conference, high-ranking officials stated that only religion could solve the nation’s social problems. Plaintiffs sought an injunction against further such conferences and remarks.

The legal theory underlying the suit was that in the competition between religious and secularist viewpoints, the government was required to be neutral. The government’s funding of these conferences, and its official support for the necessity of religion, indicated that atheists (and atheism) enjoyed an inferior status in society—arguably, an Establishment Clause violation.

The Supreme Court refused to decide the constitutional question posed, holding that plaintiffs lacked standing, Hein v. Freedom From Religion Foundation (2007). A majority of the Court (in three separate opinions) held that Flast did not permit taxpayer standing even though the conferences were paid for with tax funds.

Flast, said the Court, applied to congressional decisions to spend money in support of religion, not administrative ones. This was the case even when executive branch officials made decisions about how to spend those appropriations. Bowen (the teen chastity case) was explained away on the theory that Congress had specifically ordered the inclusion of religious groups as grantees. The challenged conferences were paid for with general White House appropriations.

Again, the Court emphasized that the broad standing rule it applied to the plaintiffs essentially would aggrandize the judiciary. The rule proposed by respondents would enlist the federal courts to superintend, at the behest of any federal taxpayer, the speeches, statements, and myriad daily activities of the President, his staff, and other Executive Branch officials.

That, said the Court, would be “quite at odds with…Flast’s own promise that it would not transform federal courts into forums for taxpayers’ ‘generalized grievances’” about the conduct of government, and would “open the Judiciary to an arguable charge of providing ‘government by injunction.’” It would likewise deputize federal courts as “‘virtually continuing monitors of the wisdom and soundness of Executive action,’” and that, most emphatically, “is not the role of the judiciary.”

The Hein Court rejected a parade of horribles proffered by respondents—such as executive decisions to directly fund religion—as unlikely to occur, subject to congressional oversight, and, perhaps, challenge by others actually injured.

A plurality of Justices found it unnecessary to consider the argument advanced by several amicus briefs that Flast should be overruled. Justice Kennedy, while agreeing with the result, reaffirmed Flast. Justice Antonin Scalia (joined by Justice Clarence Thomas) took the opposite point of view.

In an opinion that displays his acidic writing at its best, Scalia skewered the Court’s decision as continuing a “shameful tradition” of Flast and its progeny. It was in the political process, he argued, “that generalized grievances affecting the public at large have their remedy.”

This brings us to ACTSO, which involved a challenge to an Arizona tax credit available to corporations for contributions to not-for-profit organizations providing scholarships for private school students. The statute allowed such organizations to limit their assistance to groups providing scholarships to religious schools or religious schools of a particular denomination.

The claim was that this amounted to a state subsidy for religious discrimination, a claim that is far from frivolous, but not necessarily meritorious. (How is this scheme different from a charitable contribution to a religious school, certainly a tax deductible gift?) It is exactly the type of claim courts exist to sort out—or so we thought.

But the Supreme Court refused to decide, saying that plaintiffs lacked standing. Plaintiffs were not attacking the use of taxes they paid, but the state’s failure to tax all that it might. Whether the elimination of the credit would lower plaintiffs’ tax rates was based on sheer speculation of what the government might do. In short, this was not a Flast case—which involved an actual expenditure of tax funds.[2]

Displaying rhetorical talents to match Justice Scalia’s, Justice Elena Kagan penned a dissent that questioned the rationale of a distinction between a cash subsidy and a tax credit, and noted that the Court’s opinion left a gaping hole in the ability of citizens and courts to enforce the Establishment Clause.

What lies ahead?

In the past quarter-century, the Supreme Court has decided almost half a dozen Establishment Clause cases concerning the display of religious symbols on public property or the rights of religious speakers to have access to public spaces for speech. The latter cases were all brought by an excluded speaker and in each, the Court passed over the standing issue in silence, even though federal courts have a general obligation to ensure that the parties to a dispute pending before them have standing.

The lower courts have until now allowed such challenges to proceed on allegations that a religious symbol displayed on public property causes plaintiffs to avoid altogether the place where it is displayed, or take steps to avoid it by taking a different route. Some courts have allowed such suits on bare testimony that the display caused a feeling of exclusion. Likewise, courts have generally allowed challenges to prayers at public events if a plaintiff says that their presence deters attendance.

Now a few judges have begun to question these results, urging that mere exposure to religious speech or display, absent compulsion, is not an injury for standing purposes but, to use Justice Scalia’s phrase, mere “psychic injury.” Thus, as noted above, courts have been reluctant to allow atheists to challenge prayer breakfasts. This reluctance is of a piece with the Supreme Court’s rhetoric about the courts not being entitled to police all that government does for constitutional error.

That argument, however, has a substantive dimension. The Court has said that the Establishment Clause prohibits government from categorizing citizens by their religious beliefs or lack thereof. Atheists have a plausible argument that the holding of a prayer breakfast or memorializing the war dead with a large public cross relegates them as non-believers to second-class citizenship.

A refusal to recognize these as injuries for standing purposes is tantamount to rejecting the atheists’ argument on its merits. It is unfair because, by contrast, a group that was prevented from erecting a cross as a war memorial on public land as a violation of the Establishment Clause would plainly have standing. That one side does not have standing while the other does in contentious battles over government involvement with religion will surely signal to litigation-shy government officials—as well as those bent on advancing religion—that safety lies in erring in favor of religion.

Reporting for the Los Angeles Times April 3, David Savage treated the decision as if it were mostly on the merits of tuition tax credits for private (= religious) schools, and had broken no new substantive ground. In the Washington Post, Robert Barnes correctly identified the standing issue as central, but didn’t venture to characterize its significance.

But the New York Times’ Adam Liptak allowed as how the ruling “may be quite consequential.” If the Supreme Court proceeds, as some lower courts have, to apply its new standing rule to cases involving prayers and symbolic displays, it will be very consequential indeed.

1 In the Supreme Court, the party that lost in the lower court is listed first.
2 Flast involved federal taxpayers, and ACSTO involved state taxpayers. The court treated the two as presenting
identical problems, although traditionally, state taxpayers have been subject to more liberal standing rules.




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