INTRODUCTION
On June 25, the Supreme Court issued its decision in Hein v. Freedom From Religion Foundation, Inc. ("FFRF"). In a three-Justice plurality opinion authored by Justice Alito, and joined by Chief Justice Roberts and Justice Kennedy, the Court announced its ruling that federal taxpayers lack standing to complain in the federal courts about executive branch decisions to make discretionary expenditures. The case involved a challenge by FFRF to White House programs that were designed to promote the Bush Administration's Faith-Based and Community Initiative ("FBCI"). The plurality took the view that the prior case law, which granted taxpayers legal standing to complain about spending decisions that aid religion, should be limited to situations in which Congress knowingly authorized such expenditures for the benefit of religion or religious organizations. Because the spending at issue in Hein involved "purely discretionary" executive branch expenditures, the plaintiff-taxpayers fell within the more conventional ban on taxpayer challenges to allegedly illegal government spending. Justice Kennedy added a brief concurrence, in which he emphasized concerns about separation of powers that would arise between the courts and the executive branch if taxpayer standing extended to all discretionary executive actions.
Justices Scalia and Thomas joined in the result, rejecting FFRF's taxpayer standing, but they did not join Justice Alito's plurality opinion. Instead, Justice Scalia wrote a concurring opinion for himself and Justice Thomas, in which they argued that Flast v. Cohen - the leading prior decision upholding taxpayer standing to challenge government action that allegedly promotes religion - should be overruled. The Scalia opinion thus disagreed with the Alito opinion that challenges to specific congressional action, as compared to discretionary executive action, should be treated differently for purposes of taxpayer standing. The Scalia opinion rejects taxpayer standing to raise Establishment Clause questions in both categories.
Justice Souter, writing for himself and Justices Breyer, Ginsburg, and Stevens, dissented. They agreed with Scalia that the distinction between congressional and executive action should be irrelevant to the question of taxpayer standing, but they reached the opposite conclusion. The dissenters argued that taxpayers should be able to raise Establishment Clause questions with respect to all government expenditures, regardless of which branch specifically authorized the expenditure that allegedly benefitted religion in an unconstitutional way.
The consequences of Hein are not easy to predict. On the surface, the decision appears unlikely to generate a major change in the pattern of Establishment Clause litigation against the FBCI, because most lawsuits challenge grants under social service programs that legislatures have specifically approved. Justice Alito's emphasis, however, on the specificity of the legislative authorization in Flast, and his general tone of disparagement towards taxpayer standing, will lead government lawyers to argue that such standing should be increasingly narrowed. It is uncertain whether courts will accept such arguments. The uncertainty is magnified in cases involving state and local taxpayers, because the Hein opinions do not address their situation. In what follows, we explore these issues.
BACKGROUND OF THE CASE
The litigation in Hein v. FFRF arose out of a series of regional conferences, co-sponsored by the White House Office of Faith-Based and Community Initiatives ("WHOFBCI") and several executive branch agencies (including the Departments of Health and Human Services, Labor, and Education), designed to promote the Faith-Based and Community Initiative ("FBCI"). The government invited representatives of non-profit groups, both religious and secular, to attend these conferences and learn about federally funded opportunities to receive grants for social services. Acting on behalf of its federal taxpayer-members, FFRF brought suit in the federal district court for the Western District of Wisconsin against James Towey, then the Director of the WHOFBCI, and several executive branch officers whose agencies had co-sponsored the regional conferences. Among other things, FFRF's complaint alleged that the conferences involved the expenditure of government funds to endorse and promote religion. The conferences allegedly endorsed religion in a variety of ways, including through speeches by Cabinet officers praising faith-based social services.
The government defendants moved to dismiss the complaint on the ground that the taxpayer-plaintiffs lacked standing to bring the suit. In resisting this motion, FFRF relied on a line of precedent, beginning with Flast v. Cohen (1968).[1] Flast upheld a taxpayer suit under the Establishment Clause in litigation involving a program that Congress enacted pursuant to its power in Article I, section 8, clause 1, to tax and spend for the general welfare of the United States . The Court in Flast explained that there was a "logical nexus" between taxpayer status and suits against expenditures made pursuant to that constitutional provision. Flast represents an exception to the otherwise pervasive and long-standing rule against recognizing taxpayer standing to challenge the constitutionality of government expenditures.
The government relied on a contrary precedent (Valley Forge Christian College v. Americans United for Separation of Church and State, 1982),[2] which had rejected taxpayer standing in cases of executive transfer of real property, rather than expenditure of funds. The Court in Valley Forge reasoned that the transfer of property involved the congressional power in Article IV, section 3, clause 2, to "dispose of . . . the Property belonging to the United States," rather than the Article I power to tax and spend, and therefore did not fall within the Flast exception.
The district court granted the government's motion.[3] The court reasoned that the conferences were activities for which the Executive Branch, rather than Congress, was primarily responsible. Relying on the Supreme Court's opinion in Valley Forge , the district court ruled that taxpayer standing did not extend to the situation described in FFRF's complaint, even though the FFRF lawsuit involved the expenditure of money and not the transfer of real property. According to the district court, decisions concerning the use of general executive branch funds to promote the FBCI - an executive branch initiative - do not directly implicate congressional power over the expenditure of taxpayers' dollars. The Flast exception, allowing taxpayer standing, therefore did not apply.
FFRF appealed the dismissal to the U.S. Court of Appeals for the 7th Circuit. In an opinion by Judge Posner, a panel of that court reversed the district court's dismissal.[4] By a 2-1 vote (Judge Ripple dissenting), the panel concluded that the legislative-executive branch distinction on which the district court had relied was mistaken. Congress had appropriated the funds used by the WHOFBCI and other federal agencies to sponsor the conferences. The monies had thus all originated with taxpayers, and taxpayers should accordingly be free to challenge these expenditures as violations of the Establishment Clause. Judge Posner's opinion recognized that his ruling could lead to taxpayer standing to challenge every action taken by the executive branch, because congressional appropriations always support those actions - at the very least, in the salaries of the relevant executive personnel. Judge Posner thus limited the panel's ruling to cases in which the marginal cost of the alleged constitutional violation was greater than zero. Under this rule, for example, a taxpayer could not challenge a favorable reference to God in a Presidential speech because the speech would cost taxpayers no more or no less without that reference. FFRF had standing under Posner's suggested rule, because the conferences allegedly promoted religion and added costs to the FBCI.
Judge Ripple's dissent for the Court of Appeals panel argued that taxpayers should only be allowed to challenge expenditures in rare and exceptional cases. Because the expenses complained of in FFRF's lawsuit were not properly attributable to specific congressional decisions about the FBCI, Judge Ripple concluded that taxpayers should not be free to bring lawsuits challenging them as outside of Congress' power to tax and spend.
The government petitioned the full Seventh Circuit to rehear the case en banc. The circuit court denied the petition,[5] but several judges wrote opinions that complained of the uncertainty in current principles of taxpayer standing, and pleaded for the Supreme Court to clarify those principles in this or some other case.[6] The government petitioned the Supreme Court to hear the case. In December, 2006, the Court granted the petition, and in February, 2007, the Court heard oral arguments in the case.
The United States argued the case on very narrow grounds. Unlike some amicus filings, which urged the Court to overrule Flast v. Cohen and do away entirely with taxpayer standing in Establishment Clause cases,[7] the government argued that FFRF's case was distinguishable from Flast in two important ways. First, the government emphasized the district court's reasoning in dismissing the case. That is, the expenditure had resulted from discretionary decisions by the executive branch, rather than from any specific authorization by congress to promote the FBCI. Second, the government argued that taxpayer standing should be limited to expenditures to third parties, outside the government, such as religious organizations. The conferences were internal administrative expenses, which the government asserted should be left outside the scope of the rule in Flast.
FFRF and its amici challenged the relevance of both of these distinctions. FFRF argued that all executive branch spending is attributable to congressional appropriations, and therefore involves at bottom the exercise of congressional power to tax and spend. Second, FFRF challenged the distinction between external and internal expenditures. The harm to taxpayers resulting from government spending to promote religion is identical, FFRF argued, regardless of whether the executive branch did the promotion, or paid someone else to engage in the same activity. FFRF's brief proposed that taxpayer standing be permitted as long as the challenged expense is "fairly traceable to the conduct alleged to violate the Establishment Clause."[8]
THE OPINIONS IN HEIN
The Court in Hein splintered into three groups, and produced no majority opinion. The first group, represented by Justice Alito's plurality opinion for himself, Chief Justice Roberts, and Justice Kennedy (hereafter "the Alito group"), accepted the government's basic argument that taxpayer standing depended on whether the target of the suit was a decision by Congress to tax and spend in support of religion. The starting premise for the Alito group was that standing to sue, under Article III's limitation of the federal judicial power to "cases" and "controversies," depends upon the plaintiff demonstrating that he or she has been personally injured in a way that is "traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the . . . relief [requested from the court]."[9] Ordinarily, taxpayers lack standing to complain of the alleged illegality of an expenditure, because the complaint of illegal spending involves a grievance that all taxpayers share in common, and therefore is not "personal" to the plaintiff. In addition, a favorable ruling does not result in the return of any misspent money to the complaining taxpayer.
As the Alito group recognized, however, the Court in Flast created an exception to that general bar to taxpayer standing, and held that taxpayers in some circumstances have standing to assert that an exercise of Congress' Article I power to tax and spend violates the Establishment Clause. Flast involved an act of Congress, passed in 1965, authorizing aid to public and private elementary and secondary schools that educated low-income students. The Alito group argued that Congress, in light of the demography of private schools, "surely understood that much of the aid mandated by the statute would find its way to religious schools."[10]
But, the Alito group emphasized, Flast is the exception and not the rule, and the exception should be narrowly construed in order to preserve the integrity of the underlying rule against taxpayer standing. In Hein, Congress had made no specific appropriation to create the WHOFBCI or the agency centers on the FBCI, nor had Congress made a specific appropriation for conferences to promote the FBCI. Instead, the executive branch had made an independent decision to initiate the FBCI, and had used general, discretionary budget authority for administrative expenses to support the WHOFBCI, the agency centers, and the Conferences. On those facts, the Alito group concluded, taxpayers lack standing to complain that the expenditures violate the Constitution, because the expenditures lack sufficient nexus, required by Flast, to a congressional decision to spend. The Alito group thus ruled in the government's favor, and proclaimed that it was doing so without changing the pre-existing norms of taxpayer standing.
To buttress its case that the Flast exception was and should remain very narrow, the Alito group argued that prior case law had never extended taxpayer standing to any claim other than one based on the Establishment Clause, and that the Court had essentially confined Flast to situations in which Congress knowingly and specifically authorized expenditures in aid of religious organizations. The Alito group made evident that it thought the result in Flast was highly questionable, but nevertheless concluded that "We do not extend Flast, but we also do not overrule it. We leave Flast as we found it."[11]
Justice Kennedy added a concurring opinion in which he emphasized that lawsuits like this one, if permitted to continue, would intrude significantly on the day-to-day conduct of the executive branch. On the allegations in this case, for example, courts would have to undertake discovery and a possible trial on questions of exactly what had been said at each of the regional conferences for the FBCI. Kennedy argued that this sort of judicial supervision of the day-to-day speech and conduct of executive officials ignored concerns about the separation of powers within the federal government. Kennedy's opinion thus expands on a rationale that the Alito group mentions,[12] but does not develop at any length. Unlike the Alito group, however, which had described Flast v. Cohen with some disdain, Justice Kennedy's opinion proclaimed that Flast had been correctly decided. Nevertheless, Kennedy's opinion says explicitly that he joins the Alito opinion "in full," so Kennedy's opinion does not explicitly purport to narrow or broaden the standing rules that lower courts should apply in the wake of Hein.
Six of the nine Justices rejected the Alito group's distinction between legislative and executive branch decisions, but these six divided into two, diametrically opposed camps. Justice Scalia, joined by Justice Thomas, wrote a concurring opinion (hereafter the "Scalia group"). The Scalia group agreed that taxpayers lacked standing to sue over expenditures by the executive branch to promote the FBCI. The Scalia group plus the Alito group thus constitutes the five Justices who ruled in favor of the government. But the Scalia group argued that Flast v. Cohen was wrongly decided and should be overruled. That is, taxpayers should not be free to sue over expenditures that allegedly transgress Establishment Clause limits regardless of which branch of government is responsible for those expenditures.
The Scalia group opinion makes a distinction among taxpayer suits between those that involve "Wallet Injury," in which taxpayers seek personal restitution of tax payments that the plaintiffs claim have been illegally exacted from them, and "Psychic Injury," in which taxpayers claim that the expenditures cause them some sort of psychological distress. Courts may decide cases involving "Wallet Injuries," the Scalia group argues, because such injuries are personal to the complaining taxpayers, and can be redressed by an order that returns their money to them. By contrast, the Scalia group asserts, "Psychic Injuries" cannot be so redressed. Such complaints are generalized grievances, shared by many citizens, involving discontent that the law is not being followed. In other circumstances, courts do not redress "Psychic Injury" unaccompanied by material injury, and the Scalia group argues that they should not make a special exception for the "Psychic Injuries" caused by alleged violations of the Establishment Clause. Furthermore, according to Scalia and Thomas, the courts have made an illogical mess out of trying to keep the exceptional ruling in Flast v. Cohen within logical and reasonable bounds. The Scalia group argued that taxpayers are "harmed" equally by congressional and executive decisions to spend in ways that promote religion. Because they can see no valid reason to distinguish between legislative and executive decisions to spend money in support of religion, the Scalia group opinion rejects that distinction. "[W]hat experience has shown," Justice Scalia argued, "is that Flast's lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it."[13] Because Justices Scalia and Thomas viewed Flast as fundamentally inconsistent with the proper norms of standing to sue, which depend on a showing of material and personal injury, the Scalia group concluded that the Court should overrule Flast and reject taxpayer suits against decisions by either branch.
Justice Souter, joined by Justices Breyer, Ginsburg, and Stevens (hereafter the "Souter group") agreed completely with the Scalia group that the Alito group was being inconsistent and illogical to distinguish between suits aimed at congressional decisions to spend for religious groups and executive decisions of the same sort. But the Souter group argued that the Court could and should achieve logical consistency by permitting taxpayer standing regardless of whether the precise target was a congressional enactment or a discretionary executive decision. First, they asserted, Congress has to authorize all executive branch expenditures, so congressional power to tax and spend under Article I is involved in very case in which the executive branch spends money. Second, the injury to taxpayers is identical in cases where the executive rather than the legislature has decided to aid religion. In both cases, the injury is one to the conscience of taxpayers who object to being compelled to support religious opinions or activities. And that injury can be redressed by courts ordering the executive branch to stop making such expenditures, which is what FFRF sought in this case. Accordingly, the Souter group concluded that the federal courts should accept FFRF's standing to represent its taxpayer-members in this case.[14]
ANALYSIS
It is not difficult to discern a pattern in the division among the Justices in Hein. Those in the Souter group, who want a wide doctrine of taxpayer standing in Establishment Clause cases, are the four Justices who tend to support broad Establishment Clause limits on the government. For example, the same four Justices dissented in Zelman v. Simmons-Harris, which upheld the Ohio voucher plan for the Cleveland schools. By contrast, the five Justices who voted for the government in Hein include three (Scalia, Thomas, and Kennedy) who have never been sympathetic to Establishment Clause complaints about government funding of religious entities, and the two new Justices (Roberts and Alito), both of whom are widely believed to have views on the Establishment Clause akin to those of Justices Scalia and Thomas. So it is easy to view Hein as a case in which those Justices who prefer wide latitude for the government to finance religious activities outnumbered Justices who prefer much narrower latitude under the Establishment Clause for such funding arrangements. Restricting taxpayer standing in such cases is a way to minimize judicial interference with these funding schemes.
Whether or not their substantive views have colored the views of the Justices on questions of standing, the opinions in Hein raise vitally important questions about the scope of taxpayer standing in the future. How will the lower courts interpret and apply these opinions in cases yet to come?[15]
The first concern that must be addressed in order to analyze this question is how lower courts are expected to treat Supreme Court decisions which produce no majority opinion. The Supreme Court's rule to guide lower courts in this situation is that they should treat as controlling the narrowest opinion that supports the result in the case.[16] In Hein, the narrowest opinion must either be Alito's or Kennedy's. The Souter opinion does not support the result, and the Scalia opinion (urging the overruling of a major precedent) is not narrow at all.
On first glance, the Alito opinion looks to be the winner of this contest, because Kennedy says he joins all of the Alito opinion. Moreover, Kennedy appears to be just amplifying one argument, about separation of powers that Alito makes as well. If neither opinion is narrower than the other, lower courts will inevitably follow the Alito opinion, because it is far more comprehensive and because three Justices joined it.
But there is another way of reading Justice Kennedy's opinion. He says Flast was correct,[17] while Alito strongly suggests that Flast was wrong, and is not being overruled only because a decision in the government's favor in Hein does not require such overruling. So, arguably, Kennedy's opinion is "narrower" than Alito's, because Kennedy's opinion does the least violence to the pre-existing law, as reflected in Flast. Relying on Kennedy's opinion, lower courts might be willing to be somewhat more expansive in their interpretation of the scope of Flast. We expect the lower courts to wrestle over this question of which is the narrowest opinion, though we must admit that choosing the Alito opinion over the Kennedy opinion, or vice versa, may not make any tangible difference in the outcome of future cases in the lower courts.
In our view, predicting the course that lower court judges will now choose depends upon explicit recognition that Hein v. FFRF engages a pair of enduring and interlocking constitutional themes. These themes include the exceptionalism of the Establishment Clause as a source of constitutional norms, and the force of stare decisis - the obligation to respect precedent - as implemented by a Supreme Court that is deeply divided over very basic constitutional questions.
Establishment Clause Exceptionalism
In at least three ways, the Establishment Clause occupies an exceptional role within the Bill of Rights. First, it frequently involves questions about the voice and structure of government, rather than concerns about government coercion of individuals. Seen in that light, the question of what constitutes an "injury" under the Clause has a different coloration than under other Bill of Rights provisions, where the notion of injury is individuated, material, and far easier to see. Second, the Establishment Clause invites special attention to concerns of federalism. If, as some commentators and judges argue, the Clause was designed to keep the nation out of the business of controlling state policy on matters of religion, doctrines of taxpayer standing might also be interpreted to limit federal authority over state religion policy.
The Justices in the majority in Hein include those who do not accept this broad and exceptional notion of Establishment Clause injury, and at least one (Thomas) who believes that the Clause should not apply to the states. Moreover, all five of them appear sympathetic to protecting the states, and the other branches of the federal government, against expansive interpretations of the Establishment Clause. Accordingly, they may have used Hein, albeit in different ways, as a vehicle to signal the lower courts that they should be disinclined to accept taxpayer suits aimed at public funding of religious organizations.
The Souter group, in dissent in Hein, sees the Establishment Clause as expressing a strenuous norm of church-state separation, binding the states equally as it binds the nation, and as exceptional in its concept of "injury." Accordingly, this group appears to be urging the lower courts to maintain taxpayer standing in as broad a form as possible in light of the existing precedents. Of course, the Souter group lost in Hein, but Hein does not address the substantive scope of the Establishment Clause, which for now remains unchanged. A lower court judge who shared the Souter group's substantive view of the Establishment Clause might well read the Alito and Kennedy opinions narrowly, in order to maintain taxpayer standing in as broad a category of cases as possible. In contrast, a lower court judge inclined toward a narrower view of the Clause might read the Alito group's opinion, narrowing Flast, much more aggressively.
Stare Decisis
Second, the attitudes of lower court judges about stare decisis may turn out to be very important in their applications of Hein to new situations. Theories of stare decisis can be highly abstract, but they boil down to competing versions of how narrow or broad a principle can be fairly attributed to a prior case. Here, the crucial issue is the scope of Flast v. Cohen. The Alito opinion says that Flast has been "confined to its facts," but that cannot be taken literally. Its "facts" include the congressional choice to fund private schools under the Elementary and Secondary Schools Act of 1965, and the Alito opinion cannot mean that a congressional enactment on any other subject, or at any other time, cannot give rise to taxpayer standing. Such an interpretation would lead to the erroneous conclusion that the Court's decision in Hein implicitly overruled a host of other decisions in which the Court found that taxpayer standing existed, but which involved facts other than those at issue in Flast.
So the real question for lower court judges will be the scope of the principle for which Flast now stands, in light of what is said about that principle in Hein. On this question, the Alito opinion gives some very important clues. It says that "the expenditures at issue in Flast were made pursuant to an express congressional mandate and a specific congressional appropriation," and it says that "Congress surely understood that much of the aid mandated by the statute would find its way to religious schools."[18] So the principle of Flast for which the Alito opinion in Hein contends is that, in order to support taxpayer standing, the challenged expenditure must 1) be made under an express legislative mandate, which 2) includes a specific appropriation, that 3) the enacting legislature understood at the time would benefit religious entities.
The statute in Flast did not expressly specify that religious entities would receive grants. Accordingly, requiring that degree of legislative specification would appear to go beyond what was determinative in Flast, unless the "sure understanding" of aid to religious schools is somehow translated into a requirement of explicit inclusion of faith-based entities in a legislative funding program. But the Alito opinion insists that its authors chose to leave Flast as they found it in 2007, so conditioning taxpayer standing on a clear legislative statement that faith-based organizations will receive funds seems unfaithful to the views of the Alito group.
Lower court judges with a view of stare decisis that emphasizes the "no-growth, no-extension" attitude toward Flast reflected in the Alito opinion may insist that taxpayers seeking to challenge a statute on Establishment Clause grounds demonstrate that the enacting legislature effectively (even if not explicitly) mandated the inclusion of religious entities, made a specific appropriation that would include such entities, and in any event had unequivocal knowledge that religious entities would receive funds under the statute. Moreover, because Flast involved federal taxpayers, some lower court judges may lean to the view that the Flast exception does not apply to state and local taxpayers at all. Instead, the question of state and local taxpayer standing must be rethought from the ground up.
In contrast, lower court judges with a somewhat more generous view of the way in which still-valid precedents should be interpreted might read Flast as requiring no more than reasonable foreseeability (rather than "sure knowledge") by an enacting legislature that religious entities might receive grants under a legislatively approved social service program. Moreover, a slightly more capacious view of stare decisis might lead lower courts to conclude that a legislative appropriation for a program, under an objective belief that grants may thereafter go to faith-based groups, will support taxpayer standing even if the legislature had originally enacted the program without such an objective belief, perhaps because constitutional law or administrative practice precluded such grants at the time of original enactment. Finally, some lower court judges will recognize that the lower courts have been unquestioningly applying the Flast exception to state and local taxpayers since 1968, and will see nothing in Hein that suggests that state and local taxpayers should now be treated differently from federal taxpayers for these purposes.
The Future of Taxpayer
Standing in the Lower Courts
Armed with these competing views of the Establishment Clause and the doctrine of stare decisis, we are now in a position to offer some informed speculation on the ways in which the lower courts will interpret and apply Hein v. FFRF. The key variables are likely to be (1) the type and degree of legislative specificity that funds will go to religious causes or entities; and (2) whether the plaintiff-taxpayers are federal taxpayers, challenging the use of federal funds, or state or local taxpayers, challenging the use of those kinds of tax funds to support religion.
The best analytic vehicles for understanding what may now develop in the lower courts are examples, real and hypothetical, of post-Hein taxpayer suits against publicly financed support for faith-based social service.
It is not difficult to imagine easy cases in either direction. An easy case for denying taxpayer standing would be one that resembles Hein in significant respects. For example, suppose Congress creates a general budget for the buildings and grounds controlled by the Department of Labor. The department's budget request has asked for the money for general renovations and upkeep of existing buildings. Now suppose that the Department decides to convert a meeting room in its headquarters into a chapel, where employees can go to pray and meditate. Whether or not such a project violates the Establishment Clause, taxpayers will not be able to sue to block it. In the absence of an explicit DOL request for money to create a chapel, or a formal earmark by Congress of funds that must be used to create a chapel,[19] congressional budget authority for buildings and grounds cannot be seen as reflecting a legislative decision to spend for religious purposes.
There are equally easy cases for recognition of taxpayer standing after Hein. One would be a legislative grant formally earmarked to go to a religious group, such as the grant for sexual abstinence programs to the Silver Ring Thing. That grant was challenged in ACLU of Massachusetts v. Leavitt,[20] a case which produced a settlement highly favorable to the plaintiffs, and nothing in Hein suggests that taxpayer-plaintiffs could not litigate a similar case in the future. Another easy case would be a challenge to a federal agency grant, made to a faith-based organization, pursuant to the Charitable Choice provisions of the 1996 welfare reform enactment. Those provisions made explicit reference to the inclusion of faith-based providers as service grantees. Congress specifically intended that such providers should be among the recipients of grants. Courts would deem any congressional appropriations, designated for use in making such grants thereafter (by federal or state agencies), to have been made with congressional knowledge that some funds would go to religious groups for work training of welfare recipients, or some other purpose related to the welfare system. Accordingly, taxpayers would be free to challenge them under Flast v. Cohen, as construed in the Hein plurality. Indeed, this example is precisely like Bowen v. Kendrick, a 1988 decision which upholds taxpayer standing to challenge federal agency grants under an enactment that expressly references religious organizations as grantees. The Alito opinion mentioned Bowen,[21] and said nothing to cast doubt on its continued validity.
It is equally easy to imagine the contours of what will be the hard cases after Hein. They will involve legislation that falls somewhere near the mid-point of the continuum that runs between the easy cases; that is, enactments that do not clearly reveal legislative knowledge or intent that funds go to religious groups or causes, but which nevertheless give rise to a reasonable likelihood that funds will go in that direction. An overlapping set of hard cases will involve state and local taxpayer standing to raise Establishment Clause claims, a subject which the Supreme Court has not directly addressed since well before its decision in Flast v. Cohen.
Imagine, for example, that in the mid-1970's, a state legislature created a program designed to combat adult illiteracy. The legislature has funded the program by annual appropriations ever since its creation. The program is administered through the state Department of Education, which gives grants to local literacy programs. (The teachers in the program are all volunteers, but grants are given to local non-profit groups that coordinate relationships between volunteer teachers and those adults who need their help.) The program receives no federal money. The Department in the past has given grants only to secular non-profits, but in 2007, the Department awards a grant to a church group that brings students into the church sanctuary for reading instruction and uses the Bible as its primary text. Do state taxpayers have standing to challenge this grant as a violation of the Establishment Clause?
The Problem of Legislative Specificity
Our hypothetical example involves a case in which the original enacting legislature (in the 1970's) may have been unaware that church groups would be grantees. Among other things, the prevailing constitutional law at that time probably precluded such grants, because the Supreme Court had interpreted the Establishment Clause to bar "pervasively sectarian" entities from direct receipt of government funds. And the state Department of Education would probably have been aware of those constitutional restrictions, because they appeared primarily in cases about aid to education. So the state administrative practice of not even entertaining applications for grants from church groups may have been a product (at least in part) of those constitutional rulings.
But times have changed. The Supreme Court has backed away from the bar on grants to pervasively sectarian entities,[22] and has limited the Establishment Clause to a ban on public funding of activities with religious content. Moreover, President Bush has initiated the FBCI, and many states (perhaps even the imaginary one in which the example is unfolding) have created their own offices of faith-based and community initiatives, designed to implement the President's program. As a result of these developments, our imaginary state Department of Education (and other state departments as well) has begun to make grants to faith-based service providers.
Under these circumstances, a court must decide whether it will attribute to the state legislature knowledge of, and responsibility for, executive branch grants to faith-based organizations for adult literacy programs. The competing arguments are obvious. Government lawyers, opposing taxpayer standing in the case, will argue that the 1976 enactment contemplated no such grants, that past practice reveals no pattern of such grants, and that one such grant in 2007 can be attributed only to an executive branch policy to widen the grantee base. The plaintiff's lawyers will focus on the relevant changes in constitutional law, and the changes in the national and state climate with respect to the role of faith groups in social services, and will assert that the state legislature is (or should be deemed to be) aware of that change. On this view, the annual legislative appropriations for the program are sufficient to constitute legislative recognition of the possibility that faith-based groups might receive a grant to run a literacy program, and that recognition is sufficient to confer standing on state taxpayers. After Hein, these competing arguments seem to us a toss-up, with the victory likely turning on the judge's views of the Establishment Clause and stare decisis.
The Differences Among State, Local and Federal Taxpayers
Whatever the proper resolution of the issue of legislative specificity, our hypothetical case is made still more difficult by the fact that it involves only state taxpayers. Should the rule in Flast, as revisited in Hein, apply with equal force and on the same terms in this situation?
The Supreme Court has on a number of occasions treated the problems of state taxpayer standing as conceptually indistinguishable from federal taxpayer standing. As recently as 2006, in Daimler Chrysler Corp. v. Cuno,[23] the Court refused to find that state and municipal taxpayers had standing to complain about the alleged illegality of a tax break designed to lure new businesses into a community. The discussion in Daimler Chrysler proceeded on the assumption that the general policy against recognizing federal taxpayer standing applied with equal force to state and local taxpayers. Moreover, the Court's rejection of state and local taxpayer standing was based on similar reasons - the interests of state and local taxpayers are too general and remote to satisfy the concept of "injury." And the Daimler Chrysler opinion distinguished Flast v. Cohen as resting on special, taxpayer-focused concerns of the Establishment Clause. There was no hint in Daimler Chrysler that state or municipal taxpayers should be viewed differently from federal taxpayers for purposes of Establishment Clause standing.
Similarly, in Hein, the Alito plurality opinion cites with approval the Court's 1952 decision in Doremus v. Board of Education of Hawthorne,[24] which rejected state taxpayer standing for parents who objected on Establishment Clause grounds to a state law authorizing public school teachers to conduct Bible readings in class. The Court in Doremus characterized the complaint as being about an objection to the reading, not to the money spent on the salary for the teacher, and concluded that plaintiff's interest was unrelated to his taxpayer status.
So, on first and second glance, the Court has treated federal, state, and local taxpayers as indistinguishable, at least in cases in which it has rejected taxpayer standing. But there remains in this tale an anomaly, on which the Court has not yet focused. Flast v. Cohen rests explicitly on the "nexus" between taxpayer status and the power of Congress in Article I, section 8, clause 1, to tax and spend. Hein (like Valley Forge before it) rejects taxpayer standing when that nexus is not present - that is, when the decision to benefit religion is an executive rather than legislative decision. How does that concern for the "nexus" between taxpayer status and the claim of unlawful expenditure map on to state and local taxation?
The dilemma that this question poses for courts is a function of the independence of state and local law from the federal model of separation of powers. The federal constitution does not require states to separate legislative and executive power in a way that matches the federal division between Congress and the President. Although states' separation of powers with respect to taxing and spending tends to resemble that of the federal government, local governments may well not allocate powers in that conventional way. They may combine taxing power and executive power in one body, such as a County Council that maintains executive authority over some county functions. Or municipal governments may get much of their revenue from state or county taxation, with a corresponding disconnection between the taxing authority and the body that decides how to spend the monies raised. Must state and local taxpayers show, after Hein, that the governing body that decided to fund religious organizations is the same body that imposed the tax that raised the funds so spent? If this aspect of Hein is imposed on state and local law, federal judges will have to wrestle with complex issues of state and local taxing and spending authority, all for the purpose of deciding when taxpayers can sue and when they cannot. It is difficult to believe that the Supreme Court intended to impose such a task on the lower federal courts, but the legislative-executive distinction that drives Hein may result in just that. And it is very difficult to see how values of non-Establishment, or values of intelligent federal-state relations, can be served by such an enterprise. In any event, we expect that the issue of state or local taxpayer standing in Establishment Clause cases will now begin to get serious and separate attention in the lower courts.
The Relevance of Non-Taxpayer Plaintiffs
In some of the cases that have been brought to challenge grants made under the FBCI, taxpayers are the only conceivable plaintiffs, because typically no one is injured by a decision to fund a particular grantee. In such cases, a lack of taxpayer standing may mean that no private citizens can sue to enforce the Establishment Clause against government funding agencies. Other government agencies, such as a state Attorney General, might be able to take action to enforce the Clause, but that sort of action is rare.
In other situations, however, potential plaintiffs other than taxpayers might be available. For example, a disappointed competitor for a grant may complain that the grant was unlawfully awarded, but these cases too are extremely rare. Such rivals typically do not want to alienate the granting agency with accusations of unconstitutional spending. And in cases where the rival is a religious organization, the only claim that will be raised is one of discrimination among faiths, not a challenge to the promotion of religion with government funds.
Another example of an alternative plaintiff arises in cases in which there are allegations of religious coercion. Some cases about faith-based programs in prison have raised such claims, as does the recent lawsuit against North Dakota for funding the Dakota Boys and Girls Ranch,[25] which the complaint alleges is coercing teenagers placed there into religious observance. A teenager placed against his or her will in such a facility would unquestionably have standing to complain about such coercion, but the same teenager would not have standing to complain about government funding of voluntary religious experience at the Ranch, because uncoerced religious experience would not cause such a plaintiff any injury. So non-taxpayer plaintiffs may be available in some cases, but they may be limited in the kinds of claims they can present to those connected to the particular injury they have suffered.
How does the availability of non-taxpayer plaintiffs affect the scope of taxpayer standing? As a formal matter, the availability of other plaintiffs should make no difference with respect to taxpayer-plaintiffs. Courts often say that no one's standing should be denied just because there might be a better plaintiff somewhere. And courts also frequently say that they should not grant standing to a particular plaintiff simply because no other plaintiff would have standing. But we can nevertheless imagine, in the hard cases, that some lower court judges will be influenced by the potential magnitude of the violation and the question of availability of nontaxpayer plaintiffs. Where the violation seems egregious, and no one other than a taxpayer is a potential plaintiff, some judges may resolve the close calls in favor of recognizing taxpayer standing.
CONCLUSION
Hein is fully subject to the dictum of ordinary language philosophy that no decision can tell you how to read it. The terms of engagement seem obvious, but the full pattern that will develop in the lower courts is for now unknowable. FFRF and other foes of the FBCI will continue to bring lawsuits against government expenditures for faith-based social services. Many of the cases will involve federal taxpayer-plaintiffs, and many will involve state and local taxpayer-plaintiffs. Plaintiff groups will hunt for other, safer kinds of plaintiffs, but they will not always be available. Taxpayer standing will be easily demonstrated in some cases, easily rejected in others, and hotly contested in what we have called the hard cases.
The decisions to come will likely present a continuum, ranging from programs in which the legislature specifically contemplates the funding of religious entities, to those in which the legislature cannot reasonably foresee the expenditure of appropriated funds to aid religion. Government lawyers, armed with the opinions in Hein, will vigorously contest taxpayer standing in many situations. And the lower courts will do their best to sort through what remains of taxpayer standing after Hein. It remains to be seen whether clear trends, or pronounced lower court conflicts, develop in Hein's wake. If conflicts proliferate, the Supreme Court will eventually have to step in once more, but that sort of intervention could be many years away. And, as we have learned from the splintered outcome in Hein, Supreme Court intervention is no guarantee of clarification of the law.
Notes:
[1]. 392 U.S. 83 (1968).
[2]. 454 U.S. 464 (1982).
[3]. Freedom From Religion Foundation, Inc. v. Towey, No. 04.C.381.S (WD Wis., Nov. 15, 2004).
[4]. 433 F.3d 989 (7th Cir. 2006).
[5]. 447 F.3d 988 (7th Cir. 2006).
[6]. Judge Ripple dissented from the denial of rehearing, and argued that the panel had erred. Judges Flaum and Easterbrook concurred in the denial of rehearing, but they argued that taxpayer standing principles were in disarray, and they expressed the hope that the government would petition for Supreme Court review, and that the Court would accept the petition and clarify the governing principles.
[7]. Among others, the American Center for Law and Justice filed an amicus brief, which argued for the Court to overrule Flast.
[8]. Hein v. FFRF, Alito slip op. at 23 (citing Brief for FFRF at 17).
[9]. Id. at 7 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
[10]. Id. at 13, n. 3.
[11]. Id. at 24.
[12]. Alito slip op. at 21.
[13]. Scalia, concurring in the judgment, slip op. at 21.
[14]. If some complaints about executive spending activity are frivolous, the Souter group argues, courts will and should reject them as involving no violation of the Constitution. For those that are not frivolous, taxpayers should be able to bring them, and courts should be free to hear them. Souter, J., dissenting, slip op. at 4, n.1.
[15]. Lower court consideration of the meaning of Hein will begin immediately. On Friday, June 29, the Supreme Court vacated the decision of the U.S. Court of Appeals for the Seventh Circuit in Univ. of Notre Dame v. Laskowski, and remanded the case for reconsideration in light of Hein. Laskowski involves an unusual constellation of issues involving a possible order of repayment of a grant by Notre Dame, and it remains to be seen what the Seventh Circuit will do on remand. The earlier panel decision in favor of taxpayer-standing had seemed to us to be a stretch, and we will not be surprised if the Seventh Circuit now orders dismissal of the case on the ground that the taxpayers lack standing to pursue it. We analyze the issues in this case at http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=47
[16]. Marks v. United States, 430 U.S. 188 (1977).
[17]. Kennedy, concurring, slip op. at 1 ("In my view the result reached in Flast is correct and should not be called into question.")
[18]. Alito slip op. at 13, n. 3.
[19]. Justice Alito's opinion in Hein asserted that informal earmarks of funds for particular purposes, noted in congressional committee reports, do not satisfy the requirement of legislative specificity, because the executive branch is not bound by such informal earmarks. Slip op. at 17, note 7.
[20]. ACLU of Massachusetts v. Leavitt (D.Mass., settlement date Feb. 22, 2006); see our analysis of the lawsuit and settlement, available online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=44
[21]. Hein plurality opinion, slip op. at 15-17 (noting, at page16, that the statute at issue in Bowen "expressly contemplated that [grants] might go to projects involving religious groups.")
[22]. In Mitchell v. Helms, 530 U.S. 793 (2000), a four-Justice plurality explicitly repudiated the concept that "pervasively sectarian" entities were barred from public aid, and the concurring opinion of Justices O'Connor and Breyer implicitly accepted that repudiation.
[23]. 126 S. Ct. 1854 (2006).
[24]. 342 U.S. 429 (1952).
[25]. Claire Hughes, "Lawsuit Targets Troubled Teens' Placement in Christian Home" Roundtable News Story, online at: http://www.religionandsocialpolicy.org/news/article.cfm?id=6635
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