(Updated Aug. 13, 2008)

In Hein v. Freedom From Religion Foundation (2007), the U.S. Supreme Court limited the power of federal courts to enforce the Establishment Clause’s restrictions on government funding of religion. In Hein, the high court ruled that unless a legislative body has directly authorized such funding, citizens do not have the right as taxpayers to bring a suit in federal court alleging that the funding violates the Establishment Clause. Although the Hein decision was limited to the narrow issue of when taxpayers have legal standing to pursue Establishment Clause challenges, the ruling has much broader policy implications because now, when there is no relevant legislative mandate, executive agencies may fund religious organizations and activities without substantial fear of constitutional litigation.

How did the Hein case get to the U.S. Supreme Court?

The Hein case involved a constitutional challenge to conferences promoting the faith-based initiative, which was created by President George W. Bush in 2001 to eliminate obstacles that religious social-service organizations faced in competing with secular organizations for federal funding. At these conferences, President Bush and other government officials gave speeches praising the effectiveness of faith-based organizations in providing social services. Members of the Freedom From Religion Foundation, a church-state watchdog organization, brought a lawsuit alleging that these conferences had violated the Establishment Clause by promoting religion.

A U.S. District Court dismissed the suit on the ground that the members of the watchdog group lacked legal standing, meaning they did not demonstrate a personal interest in the case. The 7th U.S. Circuit Court of Appeals reversed the District Court’s decision, finding that the group’s members, as federal taxpayers, did have standing because the conferences promoted religious activities with federal tax dollars. Administration officials then asked the U.S. Supreme Court to hear the case, and the high court accepted the request.

What are the relevant precedents leading up to Hein?

The Supreme Court has long interpreted Article III of the Constitution, which grants federal courts the jurisdiction to hear “cases” and “controversies,” to mean that federal courts may hear and decide a lawsuit only if the person or group bringing the suit has standing. An individual demonstrates standing by showing that the defendant actually injured him or her. For example, a person injured in a car accident would have standing to sue the offending driver, but a driving instructor with a general interest in automobile safety would not have standing to sue that driver.

Applying this reasoning, the high court in Frothingham v. Mellon (1923) held that paying taxes does not give a person standing to challenge how the government spends public funds because the government’s spending does not actually injure particular taxpayers. This case established the general rule that taxpayers do not have standing to challenge the constitutionality of government expenditures.

In Flast v. Cohen (1968), however, the high court found an exception to this rule in Establishment Clause challenges. The Flast case involved a lawsuit brought by a taxpayer challenging federal legislation that provided funding to both religious and secular schools. The court held that the taxpayer had standing because the constitutional provision in question, the Establishment Clause, specifically limits the government’s power to spend money on religious activities.

But in 1982, in Valley Forge Christian College v. Americans United for Separation of Church and State, the court crafted an exception to the Flast ruling. The dispute in Valley Forge arose after an executive agency closed a military hospital, the Valley Forge General Hospital, and another agency decided to give the property, worth over $500,000, to Valley Forge Christian College at no cost at all to the religious institution. The high court held that a group of taxpayers lacked standing to challenge this gift under the Establishment Clause. The court reached this decision by distinguishing the case from Flast on two grounds. First, the court noted that in the Valley Forge case it was an executive branch action and not a legislative act that directed the benefit to the religious organization. Second, the court said, the government action at issue in the Valley Forge case did not involve the use of any tax dollars because the agency merely gave away property that the government already owned.

Although the Flast exception was narrowed in the Valley Forge decision, it nevertheless retained much of its force. Indeed, the court has found in subsequent cases that the exception still allows taxpayers to challenge any legislation that funds religious organizations or activities.

How did the Supreme Court rule in Hein?

Five justices agreed that the plaintiffs in Hein did not have standing, but these justices disagreed on the reasons why. Justice Samuel Alito, in an opinion joined by Chief Justice John Roberts and Justice Anthony Kennedy, interpreted the Flast exception to apply only when a legislative body directly authorizes the challenged government action. He noted that Congress did not specifically authorize the challenged faith-based conferences at issue in Hein. Rather, the conferences were funded with discretionary funds (money that Congress gives the executive branch to use for general administrative purposes). Therefore, Alito concluded, to find standing in Hein would require broadening the Flast exception to include executive branch spending. Alito was unwilling to do this because he doubted whether the exception should exist in the first place. Feeling bound by court precedent, however, Alito was unwilling to overrule Flast altogether. So his opinion “le[ft] Flast as [the court] found it,” permitting taxpayer standing under the Establishment Clause only when a legislative body directly authorizes the challenged funding.

In addition to joining the plurality opinion, Justice Kennedy wrote a concurring opinion emphasizing the separation-of-power problems that would result from broadening the Flast exception to include executive branch spending. He warned that by questioning the constitutionality of executive appropriations, courts might tread on the president’s policy decisions, thereby blurring the line separating the judicial and executive powers. Justices Antonin Scalia and Clarence Thomas agreed that the individuals bringing the suit lacked standing but also argued more broadly that the court should abandon the Flast exception altogether.

Justice David Souter, in a dissenting opinion joined by Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens, asserted that the members of the Freedom From Religion Foundation did have standing in this case because it should make no difference under Flast whether the legislative or executive branch was responsible for spending the money that injured the party bringing the suit.

In a Supreme Court decision that does not have a majority opinion, such as Hein, the rationale of the narrowest opinion supporting the result becomes the controlling law. Therefore, the controlling opinion in Hein is the opinion that, first, found no standing for the plaintiffs in Hein, and, second, will eliminate standing for the least number of potential plaintiffs in future cases.

Although Justice Alito’s opinion appears to be the controlling one, some lawyers have argued that Justice Kennedy’s concurrence should be the controlling opinion because it narrows Alito’s reasoning to reject standing only for those Establishment Clause challenges that unduly question the president’s policymaking authority. Several church-state scholars expect courts to reject this argument on the ground that Kennedy’s concurrence does not narrow Alito’s rationale but merely supports it with further reasons. Nevertheless, which opinion is controlling remains an open question, as no court has yet addressed the argument.

If, as is most likely, Alito’s opinion is controlling, the upshot of Hein is that taxpayer standing in federal courts is limited to the definition established by Flast, namely, that there is no such standing unless a legislative body has specifically authorized the challenged funding of religious causes or organizations.

What has been the impact of Hein so far?

Several lower federal courts have found that Hein requires dismissal of Establishment Clause challenges, thereby permitting the government to continue funding religious organizations and activities. The three most notable decisions are Freedom From Religion Foundation, Inc. v. Nicholson (2008), Pedreira v. Kentucky Baptist Homes for Children (2008) and Hinrichs v. Speaker of the House of Representatives of the Indiana General Assembly (2007).

On Aug. 5, 2008, the 7th Circuit dismissed an Establishment Clause challenge brought by the Freedom From Religion Foundation (the same group that brought the lawsuit in Hein). In this suit, the group claimed that several officials in the U.S. Department of Veterans Affairs violated the Establishment Clause by administering a chaplaincy program that evaluates each patient’s religious beliefs to determine the best course of care. A U.S. District Court had upheld the program’s constitutionality in January 2007, several months before the Hein decision. The group appealed and, following the Supreme Court’s ruling in Hein, the 7th Circuit dismissed the suit on the ground that the group did not have legal standing. According to the 7th Circuit, the lawsuit was just like the one in Hein because it challenged the executive branch’s use of discretionary dollars. Therefore, the court concluded that it must dismiss the case because “allowing taxpayer standing under these circumstances would subvert the delicate equilibrium and separation of powers that the Founders envisioned.”

The dispute in Pedreira arose in 1998 when Kentucky Baptist Homes for Children (KBHC) fired employee Alicia Pedreira for openly being in a lesbian relationship. In response, Pedreira brought a suit in a District Court challenging Kentucky’s funding of KBHC, a religious foster-home provider. In 2003, the court held that Pedreira, as a state taxpayer, had standing to challenge the state’s inclusion of religious organizations in its foster-care program. But following the Hein decision, the court reversed this position and ruled that Pedreira did not have standing because the Kentucky legislature did not specifically authorize funding of religious foster-home providers. This decision is currently before the 6th Circuit on appeal.

Likewise, in Hinrichs, the 7th Circuit cited Hein in reversing a District Court’s decision to uphold an Establishment Clause claim that Indiana taxpayers brought against the state’s “Minister of the Day” program. Under this program, legislative sessions opened with a sectarian prayer, such as one invoking the “saving power of Jesus Christ.” While acknowledging that the legislature spent public dollars in administering the program, the 7th Circuit found that Hein required it to dismiss the case for lack of standing because no statute specifically mandated these expenditures.

One of the most significant features of the Hein decision might be the insight it provides into how the two newest court members, Chief Justice Roberts and Justice Alito, view the Establishment Clause. How these justices would interpret the Establishment Clause remains unknown because the court has not heard such a case since either justice joined the bench. But it might be telling that in Hein, instead of joining Scalia and Thomas (who wanted to overrule Flast), or siding with the dissenting justices (who sought to extend Flast to executive spending), Roberts and Alito were in the controlling opinion that read Flast to apply only to legislative appropriations. This may portend that, at least on church-state issues, Roberts and Alito might move the court in a more conservative direction, but slowly and cautiously.

This In Brief report was written by Jesse Merriam, Research Associate, Pew Forum on Religion & Public Life.

Photo credit: Brooks Kraft/Sygma/Corbis