Hein vs. Freedom from Religion Foundation

This is a case before the Supreme Court which asks whether or not taxpayers have the legal standing to bring a case against spending by the executive branch of the government, which they claim violates the Establishment Clause of the 1st Amendment, simply because they are taxpayers.

Normally, one cannot make a legal claim unless one can show a direct injury. The government spending money on a program you disapprove of is not considered a direct injury and you can’t sue simply because a minuscule portion of that money came from your tax dollars. It’s a good rule because otherwise we’d have total chaos. However there is one exception on the books at the moment and that’s related to congressional spending in violation of the Establishment Clause.

In Flast v. Cohen (1968) the Supreme Court held that a taxpayer had standing to challenge congressional assistance to religious schools and in Bowen v. Kendrick (1988) the court held that a taxpayer had standing to challenge grants to religious institutions.

The question here is whether simply being a taxpayer is enough to confer the legal standing to challenge aspects of Bush the Unhinged’s Faith Based Initiatives program.

This is a non-trivial question and 11 states, led by Indiana but including states such as Michigan and Washington, have filed Amicus Briefs supporting the government (Hein) concerned that widening the exception to the executive branch could open the floodgates for a host of lawsuits. The state’s Amicus Brief actually calls for the overruling of Flast as a doctrinal aberration.

Beyond the Amicus Brief by the states you have the usual Christian Oriented suspects supporting the government and the usual Liberal suspects supporting the FfRF with Amicus Briefs. The Thomas More Center, ACLJ and Christian Legal Society support the government while the ACLU, The Center for Secular Humanism and The American Atheists support the FfRF.

I had to raise an eyebrow at the ACLJ saying that’s its time to stop extending special privileges to taxpayers trying to maintain the separation of church and state! Or, as the ACLJ puts it, stop extending special privileges to those “separatists.” Err, isn’t the separation of church and state a fundamental American principal that we should all be fighting to maintain? Aren’t all good Americans supposed to be separatists? That whirring sound you hear is Thomas Jefferson and James Madison spinning in their graves.

On the serious side, the Anti-defamation League, the Joint Baptist Congress and the American Jewish Congress all support the FfRF.

I guess the question becomes is the executive branch obligated to abide by the Establishment Clause? To my mind, since the executive branch is dependent upon funds appropriated by Congress and the Establishment Clause restricts Congress with respect to religion, then the executive branch is clearly obligated to respect the 1st Amendment. Although I’m pretty there are people in this country that would debate this one or at least argue that Christianity is an exception.

If that’s the case, who has the standing to challenge an action of the executive branch with respect to the Establishment Clause if not citizens and taxpayers of the United States? Allow me to suggest that any action of the Federal Government, be it the Legislative, Executive or Judicial branch, which violates the Constitution of the United States, is a direct injury to a citizen of the United States and therefore any citizen of the United States has legal standing to challenge that action in a Federal Court.

Ain’t that a wonderful, theoretical, high morality stand? The problem is how practical is it? Even a cursory glance through the news will tell you that there are far too many people in this country with too much money, too much time on their hands and ideas that are just too strange for prime time.

So how does one protect the legitimate rights of citizens of the United States while avoiding a chaotic avalanche of absurd lawsuits? That’s the question the court will be wrestling with.

In this particular case I think the court should leave the Flast decision alone. It’s been around for almost 40 years and no avalanche has occurred so far. So, unless there is reason to believe a significant change in government policy is about to occur which would lead to that avalanche, in which case you DEFINITELY do not want to gut Flast, there’s no reason to fix it if it ain’t broke.

While I would love to see the court reign in the executive branch’s tendency to be a Christian enclave, I think that is an aberration of this administration and the proper path for fixing it is the political process. If the majority of the American people truly don’t have a problem with an “Office of Faith-based Initiatives” in federal and state governments, then so be it. Those of us that do, always have the option of moving to a non-theocracy such as Holland. I really need to get over there and do some apartment hunting just in case. Maybe I should buy a summer home there?

What do I think will happen? It’s hard to say. It’s still too early to know with any degree of certainty the kind of position Roberts and Alito will take on this type of question. I can almost guarantee that this court will not extend Flast to the executive branch and will therefore deny standing in this particular case. I can only hope that they will leave Flast alone and not narrow it, or worse yet, overrule it totally. Like I said before, if it ain’t broke then don’t fix it, and I see no evidence that this particular area of the law is broke.