Washington, D.C.

In the Hein v. Freedom From Religion Foundation decision in June 2007, the U.S. Supreme Court made it more difficult for 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 specifically directed funding to a religious organization or activity, 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, the ruling has much broader policy implications because, when there is no relevant legislative mandate, executive agencies may fund religious organizations and activities without substantial fear of constitutional litigation.

One year later, how have courts interpreted Hein? How will Hein affect the future direction of lawsuits involving the funding of religion? What insight does Hein provide into how the current Supreme Court justices view church-state litigation?

To discuss these issues, the Pew Forum on Religion & Public Life invited Alex Luchenitser, senior litigation counsel for Americans United for Separation of Church and State; Chip Lupu, professor of law at The George Washington University Law School; and Walter Weber, senior litigation counsel for the American Center for Law and Justice.

Audio of this event is available at the Federalist Society’s website.

Alex Luchenitser, Senior Litigation Counsel, Americans United for Separation of Church and State
Ira “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School
Walter Weber, Senior Litigation Counsel, American Center for Law and Justice

Robert Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School

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Event Transcript

David Masci

DAVID MASCI:  I want to thank all of you for coming today and welcome you on behalf of the Pew Forum on Religion & Public Life, The Federalist Society and The Constitution Project. It’s my great pleasure to welcome you to a discussion on the impact of the Hein decision, one year after the Supreme Court ruled in this case. My name is David Masci, and I’m a senior research fellow here at the Pew Forum.

The Pew Forum seeks to promote a deeper understanding of the issues at the intersection of religion and public policy. The Forum is a project of the Pew Research Center and is completely nonpartisan, which means that we don’t take positions on policy debates, including the one we’re going to be having today.

As I just mentioned, the Forum’s cosponsors for this event are The Federalist Society and The Constitution Project. The Federalist Society is a group of conservatives and libertarians interested in law and public policy. It is founded on the principle that the state exists to preserve freedom and that it is the province and duty of the judiciary to say what the law is, not what it ought to be. The society seeks to promote an awareness of these principles and to further them through its activities. The Federalist Society’s Dean Reuter and David Ray were both instrumental in planning this event, and I want to thank them both publicly for their hard work.

Our other cosponsor is The Constitution Project, which is an independent think tank based here in Washington, D.C. that advances the voices of unlikely allies to promote and defend constitutional safeguards. Since 1997, The Constitution Project has assembled bipartisan coalitions of respected leaders who, through issue-oriented committees, produce consensus recommendations for public policy reforms. The project also conducts strategic public education campaigns and helps to create the political majorities needed to transform this consensus into sound public policy. The project’s president, Ginny Sloan, and its senior counsel, Sharon Bradford Franklin, also played a very important role in organizing this event, and I’d like to thank them as well for their hard work today.

We’re very pleased and very privileged to have Professor Robert W. Tuttle as our moderator today. I met Bob more than 20 years ago when both of us were very unhappy law students. As many of you probably know, Bob has gone on to an extremely distinguished career as a teacher and a scholar at his and my alma mater, The George Washington University Law School. Along with his longtime collaborator, Chip Lupu, whom Bob will introduce along with the other speakers in just a moment, he has written numerous law review and other articles on church-state issues, particularly government funding of religion, which of course is the topic on today’s agenda.

Before I turn it over to Bob, I want to mention just a couple of things. First, this meeting is on the record and it’s being taped. We want to post the transcript on our website soon after the meeting so that others have a chance to be in on this discussion. Without further ado, let me turn the podium over to Bob Tuttle.
Robert Tuttle

ROBERT TUTTLE:  Thanks very much, David. It’s a pleasure to work with you all in the Pew Forum and with the organizations sponsoring today’s event. It’s a wonderful turnout. We are delighted and delighted not simply by the numbers but by who is here. It’s only in this city where you’re going to get people that know so much about what anybody else outside the Beltway would think of as an arcane and largely uninteresting legal topic, and people that would know that it is very much not that. Indeed, we even have the defendant in the case in the room someplace. I won’t single him out lest he be embarrassed.

But I am most delighted by the panel we have together. First speaking will be Chip Lupu, my colleague and dear friend in work over the last many, many years. Chip is the F. Elwood and Eleanor Davis Professor of Law at GW. He and I work together on a variety of projects, but he is also widely respected as one of the top handful of scholars in the country on law and religion questions.

We have with Chip two of the most respected and most experienced litigation counsel on questions of law and religion. Any time we see a brief with either of these guys’ names on it, we know we’re in for good work. Alex Luchenitser is going to go first. Alex is senior litigation counsel for Americans United for Separation of Church and State. He served as lead counsel for the organization in two cases that have tested the scope of Hein: Americans United v. Prison Fellowship Ministries (2006), which was in the 8th Circuit, and Pedreira v. Kentucky Baptist Homes (2008) in the 6th Circuit.

Speaking third will be Walter Weber, who is the senior litigation counsel for the American Center for Law and Justice here in Washington, D.C. Walter is a very experienced litigator on church-state issues, but to our purposes, he wrote a very fine amicus brief before the Supreme Court in Hein, which I commend to your reading if you haven’t seen that.

So we’ll start with Chip and move onto Alex and then Walter.
Ira &ldquoChip” Lupu

IRA “CHIP” LUPU:  Thank you, Bob, for the kind introduction. Bob might have been an unhappy law student until I showed up at George Washington University Law School and became his teacher. Then he got to take law and religion classes. It wasn’t me; it was the subject. And he was the best student I’ve ever had and now is the best teacher I ever had.

About 10 days ago, a very able law professor, whom I believe is sitting in this room – I won’t identify him – said to me, I was a little surprised to see that the Pew Forum is putting on this event on what seems like a technical subject: the question of taxpayer standing in Establishment Clause cases. I said to him, and I’m going to say to you, that that comment was – not the surprise part but what the subject is – that it’s half-true, that is, the focus here is about the case of Hein v. Freedom From Religion Foundation, and the particular focus of the case has to do with taxpayer standing in Establishment Clause cases.

But, of course, the focus of the conversation is in no way limited to the narrow or technical qualities of that question. The legal narrative to which Hein is central involves much larger themes about the government’s power to promote religion and the scope and importance of judicial power to constrain government power to promote religion. Now, a lawyerly way to say the same thing would be to say that Hein and its consequences are about the relationship between the First Amendment’s prohibition on laws respecting an establishment of religion and the Constitution Article III conception of the appropriate conditions for exercising judicial power.

Let me make a few observations about each of those, both the Establishment Clause and about Article III before I bring them together. The Establishment Clause is part of the Bill of Rights. It’s the first in the Bill of Rights. But the pertinent right protected by it has a somewhat different character from, I think, perhaps all of the other rights protected by the Bill of Rights. All of the other ones are individuated, capable of being held individually.

When we say there’s a right to be protected against cruel and unusual punishment, we mean everybody in the room here, separately and individually, has that right to be protected from cruel and unusual punishment. So if the government would institute the death penalty via burning at the stake, and it applied to 20 people in the room or just to one person in the room or one person in society, we’d say, listen, it implicates that person’s rights, who’s ever subject to burning at the stake as a mode of being executed. Virtually every element in the Bill of Rights, save the Establishment Clause, has this character of protecting rights that we identify as belonging to individuals, separately and individually.

The Establishment Clause duties of the government and the corresponding protections that it gives the citizens are really quite different from that. They’re held collectively. It’s the only way to understand them. You cannot coherently understand the idea of the government establishing Christianity for one person or for a small group, for three people, for five people. Promotions of religion, subsidies of religion, support for religion will always affect all in a non-individuated way. There may be subjective differences in reaction. Some people may applaud; some people may be upset. But the promotion of religion is a collective act and it will affect the society collectively.

Now, why does that matter? Why does it matter that the Establishment Clause has that different character? Well, that brings us to the idea of injury and Article III in the role of courts. It’s obvious that cruel punishments will injure the punished or those who are about to be subject to the punishment. But who is injured by government promotions of religion that affect all that are in the society more generally, whether they are financial subsidies or putting the Ten Commandments on the courthouse lawn or whatever the particulars might be?

This takes us to limitations on judicial power, as understood coming out of Article III of the Constitution, which authorizes the creation of the Supreme Court, the creation of federal courts. It says federal courts have power to decide, among other things, cases arising under the Constitution of the United States.
Ira &ldquoChip” Lupu

What is it that makes something a case that courts can act on? Well, one requirement is that the person who is complaining about something the government is doing is injured by whatever act is challenged. I can’t challenge the burning at the stake punishment because I might be upset or offended by it. It doesn’t hurt me; it’s going to hurt somebody else. The person who is subject to the burning at the stake order can challenge it; I can’t challenge it. It doesn’t hurt me.

So who is it that is going to be permitted to challenge alleged establishments of religion? Whom do they hurt? Of course, this brings us to the question of taxpayer standing because for 40 years in the federal courts, there’s been a conventional idea that when the government spends money in support of religion, taxpayers can complain about that.

Why is that a matter of controversy? Well, because as a general proposition, taxpayers cannot complain in the federal courts about the illegality of expenditures. If I’m upset about that burning at the stake for some people, I can’t go to the federal courts and say, I’m paying for the wood and the kindling and the burning place, and so I have a right to complain about it. The courts are not going to entertain that claim.

Back in 1923 – I’m going to walk you though a few cases that take us up to the Hein decision – Frothingham v. Mellon (1923). The Supreme Court says federal taxpayers may not challenge the legality of expenditures. You can always challenge your own tax bill. Yes, if someone says you have to pay more money, then you’re injured and you can challenge that. But if you want to challenge expenditures because you say they’re unlawful, in Frothingham v. Mellon, 1923, the Supreme Court says taxpayers do not have standing to challenge the illegality of expenditures.

That was a case about federalism: Could the federal government spend on something rather than only the states? But the principle seemed to be sweeping and broad. Only in 1968 did the Supreme Court create an exception to the general rule of no taxpayer standing to challenge expenditures in the federal courts. That was Flast v. Cohen (1968), and that’s a major breakthrough case. That’s why we’re here today.

Without Flast v. Cohen 40 years ago, we wouldn’t be having this conversation today about Hein, and there would have been almost no law in the federal courts for the last 40 years about public expenditures in support of religion. There might have been some in the state courts; we can talk about that later. But the federal courts didn’t have authority to hear taxpayer challenges until Flast v. Cohen.

In Flast v. Cohen, the Supreme Court said, Establishment Clause challenges are different for taxpayer standing purposes because the Establishment Clause was designed historically to limit the power to tax and spend for religion. It really was about taxing and spending for religion. So we’ll let taxpayers bring Establishment Clause challenges when Congress specifically authorizes money being spent for religious organizations – in that case it was schools, private schools including religious schools – taxpayers can challenge. If there had been no taxpayer standing in that case, there would have been no one with standing at all. Typically when the government spends money, it’s not hurting anyone; it’s helping whoever are the beneficiaries of the expenditure.

Now, in 1982, there’s the beginning of a cutback from Flast v. Cohen. This is Valley Forge Christian College v. Americans United (1982), where the executive branch transferred some surplus property that was held by the executive branch to a Christian college. There was a complaint that that violated the Establishment Clause, and the Supreme Court ruled, 5-4, there was no taxpayer standing in that case. Why? Partly because the center of gravity of the case was the executive branch transferring property, not an act of Congress specifically directing it to do so, and partly because that wasn’t spending money. That was transferring land and buildings, real estate. Now, to most citizens, they’d say, why should it matter if it’s money or land or buildings? These are all things of value. But the Supreme Court rested on that distinction. This was executive activity and this was land and buildings, not money, so it didn’t implicate Congress’ Article I power to spend, and taxpayers couldn’t challenge it.

Things stayed rather stable in light of Flast v. Cohen and the Valley Forge case for the next 25 years until the Hein decision. Hein started out as Freedom From Religion Foundation v. Hein, and it was a complaint designed to challenge the faith-based initiative. The Freedom From Religion Foundation had brought a number of challenges to particular grants under the initiative. They had tried to challenge charitable choice legislation. They’d had some small victories, but they wanted something large. So they went after the executive branch and the conferences that it held to promote and sponsor the faith-based and community initiative. The theory of the case was, spending money to have these conferences at which the faith-based initiative is promoted violates the First Amendment.

I always thought the suit was ill-advised. I thought the suit would never have prevailed if the plaintiffs had successfully gotten the court to focus on whether that act violated the Establishment Clause. But the courts never got that far. Narrowly framed, the question in Hein v. Freedom From Religion Foundation – a standing question – is was the case like Flast because it involved money? The executive branch had general administrative budget Congress had authorized and appropriated; it had used those dollars to pay for the conference. Was the case like Flast? Or was the case like Valley Forge Christian College because it was the executive branch acting on its own agenda to promote the conference? Narrowly, that’s the way the question got framed.

The district court said, this is like Valley Forge Christian College. This is executive branch activity, not congressional activity – no standing. The 7th Circuit said, no, no, no; this is money. The money has to come out of an act of appropriation from Congress, so the Article I spending power sits behind this. It doesn’t matter whether Congress said, yeah, have the conferences or it just said, here’s money; run the White House. Either way, it was taxpayers’ money; taxpayers can pursue it.

The Supreme Court then reversed the court of appeals and dismissed the case on grounds holding there was no taxpayer standing. Now this is the hardest part of the story to explain. The Supreme Court splintered – and you’ve seen this in other cases – but here there was a lot of splintered decision. The vote was 5-4, but the vote was 3-2-4, and of the three – Alito, Roberts and Kennedy – who wrote the plurality opinion, one of those, Justice Kennedy, wrote a separate opinion yet for himself. So it was 3-2-4, but it was really 2-1-2-4.

So it’s hard to put that all together, but the Alito plurality opinion said, in order for taxpayers to have standing, you have to be able to attribute the expenditure to Congress, not just that the money came from Congress but that Congress authorized expenditure for religious activities or for religious organizations, and here they haven’t done it. This is executive branch activity not congressional focus on religion, and taxpayers don’t have standing.

Justices Scalia and Thomas took a more aggressive and ambitious view. They said Flast v. Cohen is wrong. Taxpayers should never have standing, not in this case when it is the executive branch and not in a case like Flast, where Congress has explicitly said spend money for religious entities or religious causes. Overrule Flast; taxpayers should never have standing.

And the four dissenters – Souter, Ginsburg, Stevens, Breyer – said, this distinction – Scalia and Thomas are right that it shouldn’t matter whether it’s the executive branch or the legislative branch. But they’re wrong about whether taxpayers should have standing. The dissenters said taxpayers should always have standing, whether it’s legislative or executive activity.

So we’ve got this division on the court, 3-2-4. So how do we know what the law is in the face of that? Well, there’s a simple, straightforward rule – at least simple to state – that when there is no majority opinion behind a Supreme Court result, we don’t count heads. We don’t say, which one got the most votes? The rule is the narrowest opinion in support of the result is the operative law. The narrowest opinion in support of the result is the law. Well, that can’t be the dissent. They didn’t support the result. It can’t be Scalia and Thomas because that’s not the narrowest opinion. They said overrule Flast v. Cohen; taxpayers should never have standing.

So, leaving Justice Kennedy aside – and the lower courts have treated it this way, at least so far – the narrowest opinion in support of the result is Justice Alito, Chief Justice Roberts, Justice Kennedy, an opinion that said it really matters whether the legislature has authorized expenditures for religion or not. If they have in some specific way, then taxpayers can complain about them. But if they haven’t and this is executive branch activity to foster or promote religious entities or religious causes, then that’s not attributable to Congress and taxpayers do not have standing.

Taxpayer standing then turns on the degree of specific legislative involvement or authority to spend on religion or religious organizations. Lower courts have struggled for the last year – you’re going to hear more about that from others – with that idea. But there are three big questions, it seems to me, that are sitting there in the wake of the court’s opinions in Hein v. Freedom From Religion Foundation. These are not academic questions. Academics worry about them. But these are questions that the lower courts have been actively engaged with.

#1 – just how specific does the legislative authority to spend on religion or religious organizations have to be? Do they have to say, yes, spend for religious causes or religious entities? Is it enough that the legislature knows that the money might be spent on religious causes or authorities but doesn’t explicitly say so? Just how explicit does the authority have to be – question #1.

Question #2 – about which the Supreme Court said nothing in Hein – does Hein apply with the same force to state and local government as it does to the federal government? The background of Flast v. Cohen and Valley Forge was all about Congress and Article I power to spend and the Establishment Clause as a historic limit on the Article I power to spend. But what happens when state and local government spend money for religious causes or entities? Do we go through the same set of questions, or is there something different going on?

Third, will other standing-friendly doctrines start to melt away in the wake of Hein v. Freedom From Religion Foundation. Taxpayer standing in Establishment Clause cases is a plaintiff-friendly, taxpayer-friendly doctrine. There are some other doctrines, for example, the idea of observer standing. Who can sue when the Ten Commandments is put on the courthouse lawn? Typically, it’s someone who says, I walked by, it bothered me. I have to walk by it every day on the way to work and it bothers me. That’s the injury.

You know the lawyers in the room – and I’ll bet even the non-lawyers in the room now – understand that if I have to walk by the place every day where people were burned at the stake, I would not have standing to complain about that. I would not. The person that was being burned or about to be burned would. The observers, no matter how upset they were to have to walk by the public burning, I think would not have standing. But observers of public promotions of religion do have standing under the prior law – Supreme Court and lower court. And even though Hein wasn’t about that directly, if there is the beginning of some little meltdown in plaintiff-friendly doctrines under the Establishment Clause, one has to wonder whether it’s going to move from taxpayers into observers as well.
Alex Luchenitser

ALEX LUCHENITSER:  It’s not often that I find myself in agreement with Justice Antonin Scalia, as he is not exactly a friend of church-state separation and generally does not rule favorably in the kinds of cases that my organization litigates. But when I read the Hein decision, I found that Justice Scalia hit the nail right on the head when he wrote that the plurality creates “utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently but which cannot possibly be in any sane world the reason it comes out differently.”

As Justice Scalia explained, there is no logical theoretical underpinning for the distinction that Hein draws between legislative and executive action. The injury in Establishment Clause cases that are brought by taxpayers is the extraction and spending of tax money in support of religion. That injury is the same regardless of whether the spending occurs as a result of legislative action or as a result of executive action. So if logic cannot explain the result in Hein, how can the case be explained?

I fear that the answer lies in what a majority of the Supreme Court thought of the merits of the case. We know that Justices Scalia and Thomas support a very narrow view of church-state separation. Justice Scalia believes that it is constitutional for the government to favor religion over non-religion and to favor monotheistic faiths over other faiths. And Justice Thomas does not think that the Establishment Clause should even apply to the states. Justices Alito and Roberts are widely believed to hold similarly narrow, though perhaps not as radical, views of church-state separation.

While Justice Kennedy is more protective of church-state separation, at least in some areas, from his concurrence in Hein, it was very clear that he thought that the case should never have been brought. In his concurrence, Justice Kennedy expressed a great deal of concern that allowing Hein to proceed and granting a remedy in the case would lead to intrusive ongoing judicial monitoring of executive branch speech and internal executive branch operations because what the plaintiffs were challenging in the case were conferences presented by the executive branch, and most particularly what executive branch officials said at the conferences.

In other cases decided the same Supreme Court term where a majority of the Supreme Court thought favorably of the merits of the case, standing was found, even though there was substantial basis to question it. For example, in Parents Involved in Community Schools v. Seattle School District(2007), which was decided just three days after Hein, the Supreme Court struck down the use of racial classifications by school districts to maintain racial integration in their schools. The court found that the parents who were the plaintiffs in the Seattle case had standing, even though none of their children had yet been denied placement in the school of their choice and it was speculative whether this would ever occur.

In Massachusetts v. EPA (2007), another decision that same term, which was also 5-4, where Justice Kennedy joined the liberals in the majority, the Supreme Court held that the state of Massachusetts had standing to challenge the EPA’s denial of a petition to regulate greenhouse gas emissions under the Clean Air Act. Standing was based on the long-term harm to the state from global warming. If Justice Kennedy had not thought positively of the merits of the case, would he have not joined the court’s four conservative justices in concluding that there was no standing on the grounds that the injuries alleged by Massachusetts were remote and speculative and that causation was too attenuated?
Alex Luchenitser

So if Hein is not a product of logical, rational, principled decision-making but a result of what the court thought of the merits of the case, how should the case be interpreted? The correct answer lies by looking at the end of the Alito opinion, where the court says that “in the four decades since Flast was decided, we have never extended its narrow exception to a purely discretionary executive branch expenditure.”

The court also says, “We need go no further to decide this case.” And the court says, “We decide only the case at hand.” So the correct way to read Hein for lower courts is to interpret it as standing only for the proposition that taxpayers cannot challenge purely discretionary executive branch expenditures. And by that, I mean the kind of expenditures that were at issue in Hein, expenditures out of funds that were appropriated by Congress for general executive branch operations and were not designated or restricted to any purpose, meaning that the executive branch could use those funds for any purpose it wanted to whatsoever.

As long as Congress designates particular funding for some particular purpose, no other specificity should be required. So the lower courts should not require the legislature or Congress to specifically require that funding go to religious organizations or even require any such knowledge.

The concurrence by Justice Kennedy in Hein, who cast the fifth and deciding vote, supports such a limited reading of the case. In the beginning of his concurrence, Justice Kennedy reaffirmed that Flast was correctly decided, and he reaffirmed that the Establishment Clause expresses the Constitution’s special concern that freedom of conscience not be compromised by government taxing and spending in support of religion.

As I’ve mentioned, the rest of Justice Kennedy’s concurrence explains that allowing standing in Hein would have led to ongoing intrusive judicial oversight of internal executive branch speech and internal executive branch operations and that if a federal court attempted to enjoin such speech or operations, this would violate the fundamental principle of the separation of powers.

Justice Kennedy’s concerns do not apply in the kinds of cases that taxpayers normally bring, cases that challenge government funding of religious organizations outside the government. So in such cases, lower courts should interpret very liberally the requirement in Hein that there be a sufficient link between challenged expenditures and congressional action.

In addition, given Justice Kennedy’s focus on the separation of powers, a point that the plurality opinion of Alito also emphasized, Hein should not be applicable to state taxpayers at all. This is because the Supreme Court has held that the doctrine of separation of powers does not apply to the relationship between the federal judiciary and the states. For this reason and other reasons, Hein also should not be applicable to local taxpayers.

In a very long-running line of case law stretching back over 100 years, which was just reaffirmed by the Supreme Court in 2006 in a case called Daimler-Chrysler Corp. v. Cuno, the court has held that local taxpayers should be treated differently than state and federal taxpayers because local taxpayers have a much closer direct and immediate relationship with their municipality than do state and federal taxpayers. And so, the Supreme Court has repeatedly held – and lower courts have repeatedly held – that local taxpayers have a general right to challenge illegal tax expenditures, and the courts have never applied the kinds of limits that are applicable to federal and state taxpayers to local taxpayers.

Now, not surprisingly, given the fractured nature of the Supreme Court in Hein and the lack of a specific bright-line rule set out in the case, the impact of Hein in the lower courts has been mixed. In Americans United v. Prison Fellowship Ministries, the 8th Circuit held that taxpayers had standing to challenge a state’s use of tax funds to support a religious prison program, emphasizing that there were specific legislative appropriations for the program challenged in the case and finding irrelevant the defendant’s point that the executive branch had discretion in selecting the specific provider for the program.

In ACLU v. Blanco, in holding that Louisiana state taxpayers had standing to challenge two statutory earmarks to churches, a federal district court suggested that it viewed Hein as inapplicable to state taxpayers. And, in Bats v. Cobb County, a Georgia federal district court held that county taxpayers had standing to challenge a county commission’s procedure for selecting clergy who gave opening prayers at the beginning of the commission’s meetings. The court concluded that Hein does not apply to local taxpayers.

On the other hand, in Hinrichs v. Speaker of the Indiana House of Representatives(2007), the 7th Circuit relied on Hein to hold that taxpayers could not challenge the sectarian nature of prayers given at the opening of sessions of the Indiana state House. The court concluded that Hein did apply to state taxpayers.

Finally, in Pedreira v. Kentucky Baptist Homes for Children, a Kentucky federal district court read Hein extremely broadly – in our opinion, very wrongly – in concluding that state and federal taxpayers had no standing to challenge a state’s funding of a religious provider of residential child care. The court held this even though Kentucky statutes expressly authorize Kentucky’s executive branch to provide funding to private child care providers. The Kentucky legislature had made specific appropriations for residential child care, and the Kentucky legislature was well aware that state funds were being paid to religious child care providers, including the defendant in the case.

I am one of the counsel for the taxpayer plaintiffs in Pedreira, and we are appealing to the 6th Circuit Court of Appeals this decision, which we strongly feel is very wrong-headed, and we are quite confident that the case will be reversed.

Now let me turn things over to Walter Weber of the American Center for Law and Justice. I’m sure Walter will have some different opinions on the things I just said.

Walter Weber

WALTER WEBER:  Thank you, Alex, and thank you, again, to the sponsors for this presentation. I’m going to go back first to what Chip said. The issue in these cases is, who can sue? The normal rule is that you can only sue – at least in federal court – if you are someone who is injured.

Now, we have been focusing on the taxpayer standing in the Establishment Clause context. I think it’s important to recognize that Flast really does stand alone in a lot of ways. In every other area where the Supreme Court has been asked to allow taxpayer challenges to alleged unconstitutional action by the federal government, the Supreme Court has said no. So one of the issues you want to keep in mind is, when you ask, is the Establishment Clause important enough that there should be an exception for taxpayers to bring a suit, what about other areas of law where the court has said you’re not allowed to challenge? Is federalism not an important – or comparably important – structural provision in the Constitution, just for example?

Now, in Flast, the exception itself was also pretty narrow. It only applies to Establishment Clause claims – I’ll mention that. It only applies to claims challenging congressional action; Hein illustrated that because it said executive action is not covered. And it only applies to exercises of the spending power. The Valley Forge Christian case illustrated that when the government was giving property to a religious school. And that was an exercise of the property clause, not the spending clause, and so therefore Flast didn’t apply.

Now, you may say to yourself, well, this looks awful arbitrary. How does the court justify that? I think the overarching rule, at least as of Hein is, Flast is an exception to the rule that applies in every other context and we’re going to read that exception narrowly. We’re going to construe it against the taxpayer claims and basically limit it to its facts. That’s the position that Justice Powell took in a case after Flast when he said, I really have my doubts about whether Flast was right, but it’s been decided. Let’s just stick to it and keep it to its facts and not expand it. Justice Harlan in dissent in Flast had said that he thought it was totally incoherent as a logical matter and would have voted the opposite way.

Kennedy has taken up with the Powell position and said, I think we should stick with Flast, but let’s not expand it. Now, we filed an amicus brief in Hein asking the court to overrule Flast. Obviously, they didn’t do that. There’s at least five votes up there to keep it. But it was interesting when I was doing the research for that, I found that not only was Flast alone in authorizing federal taxpayer lawsuits against alleged federal misdeeds, but every single argument that the Flast court had identified in support of recognizing standing in that case has subsequently been rejected in a different Supreme Court case. And, in fact, the Supreme Court had even held, to my surprise, in a majority opinion that Flast had erred in at least part of its rationale in ignoring the separation of powers concerns.

That refrain actually was picked up in the Alito opinion, where they quoted that opinion, saying that Flast had erred. So we said, Flast is now like Wile E. Coyote in the old Road Runner cartoons. He’s standing in midair, the ledge is gone from underneath him, and all it takes is for someone to look and say, whoops, there’s nothing there and – crash! All right? (Laughter.) But, for whatever reason, whether it’s policy or principle, the court has decided that we’re going to leave Wile E. hanging there in the air right now, but we’re not going to put anybody else out there with him. So, in our view, I guess the court did the next best thing to overruling Flast, which was to construe it narrowly and limit it to its facts.

Now, what’s next? Well, I think Chip put his finger on a very important issue. When you look through the Hein opinion, there’s a word “specificity” that appears in either that form or in variant forms again and again and again, at least – in the slip opinion – at least nine different pages and in Justice Kennedy’s opinion. Specificity what? Congress has to specifically authorize the expenditure that’s being challenged for it to fall within Flast.

Now, the question that arises then: How specific is specific? Okay, there’s a lawyer’s dream, right? We have some points on the graph that tell us. Flast says that a grant for money to private schools – where everyone knows that private schools includes religious schools – is specific enough. Bowen v. Kendrick, where a grant was to recipients to teach various family life issues and it included religious recipients, was specific enough.

Hein says that a budget for a federal executive agency, period, is not. Hein also says – and I guess it’s technically indicative, but it’s indicative of the controlling opinion, in Footnote 7 that “it is not relevant that Congress may have informally earmarked portions of its general executive branch appropriations to fund the offices whose expenditures are at issue.”

So what that stands for is the proposition that House reports, floor statements, informal opinions, maybe media coverage, where everyone kind of knows what’s going on, is not enough. It has to be something in the legislation that points you to the challenged expenditure. I’m sure there’s going to be litigation over that because that leaves a lot of wiggle room for where the margins are going to be.

On the ground, what this will do is it will make it marginally harder for church-state separationist litigants to bring challenges to certain federal government action; also I would argue state government action. The Supreme Court, on that particular point, has, I think, pretty consistently in the cases put federal and state taxpayer standing in one box and municipal in the other. Municipal, the standards are much lower, the connection between the taxpayer and the local government is considered much more intimate, whereas at the state and federal level, you’re throwing your money into a big pot and money is being taken out of that big pot and the connection is essentially broken. So Hein, under that view – and I think it’s the correct view – would also apply to state taxpayer suits.

But these aren’t the only ways you can challenge actions. If someone applies for a grant in a program that is allegedly favoring religion or favoring certain kinds of religion and is denied, they can challenge the denial and say [inaudible]. There still are all of the offended-observer cases out there, where people say, well, I walked past the cross, I walked past the Ten Commandments and I was offended, okay?
Walter Weber

Now, my reading is the Supreme Court has never officially endorsed that view. And I don’t think that it makes sense because it’s inconsistent with every other area of the law, like walking past the people being burned at the stake. But the Supreme Court has assumed, for purposes of decision, that the people who brought those kinds of cases have standing. The court has never looked at that particular issue, just noted at most in a footnote that the lower courts might have held that someone had standing because they were offended. I don’t even know if they’ve gone that far, but does this mean that the court might cut back on that area of standing because, in general, they’re being more demanding about standing requirements? It’s possible. I guess we’ll find that out if they ever take a case that turns on offended-observer standing.

One last thing I want to say, and I’m trying to keep this short, is a couple of words in defense of reading Flast narrowly, if not overruling it. The court spends a lot of time talking about separation of power so I’m not going to dwell on that, just to say that the general idea is that if courts are not reviewing cases where individuals have actual injury to them, there is a serious danger that you will end up having the courts generally supervising the actions of a coordinate branch, which is not supposed to be their authority under the Constitution.

Another point to consider is one of general fairness. I mentioned this briefly at the beginning of my talk. There are lots of things in the Constitution – not just Establishment Clause – that apply to the way government operates in a way that the people who are benefited won’t necessarily have an incentive to complain. Obvious example: spending programs, right? Who’s going to object to being given money by the federal government? But if you think that the federal government is exceeding its powers by, say, funding kindergartens across the country or setting up some program to help rehab in jails for robberies. I mean, there are countless kinds of programs that would be general do-good-ism-type things and the federal government would have political incentives to pay for it or even to send out people who are employees to do the work, but which arguably would be way beyond what our Constitution of limited government is supposed to be.

If you’re someone who is of the opinion that that’s an abuse of the federal power, who can sue? The people who are being helped, the people who are getting the money, they’re not going to complain about it. Mrs. Frothingham tried to bring a case like that. She said the federal government had no business paying for maternal and child care; that’s a matter for the states. Maternal and child care is a good thing, but it’s not something the federal government should be doing, she said. And the Supreme Court said, sorry, you’re a taxpayer; that doesn’t give you standing.

Theoretically, there are other areas where the same thing could happen – violations of the Commerce Clause. Unless it’s a law that’s being passed that restricts you, in which case, you can challenge – if it’s a law that does something beneficial or positive, you can’t challenge it. What about things that would legalize acts that you might find offensive? Well, you don’t have to do it. You’re not being told you have to do whatever it is, sell yourself into slavery or commit suicide or whatever it is. But if you object to the fact that the government is letting other people do it, you’re out of luck; you’re not going to get standing.

So the fairness argument, I would submit, suggests that Flast is really a special privilege for Establishment Clause plaintiffs. And why should they have that special privilege? I’m sure there are plenty of good arguments for why they should have that, but keep in mind that those are arguments against kind of a broader fairness approach to that area of the law.

And with that, I think I’m going to pass it back to Bob.
Robert Tuttle

TUTTLE:  Chip, Alex and Walter, thank you all very much for giving us lots to think about with these questions. I want to kick us off with a question for any of you, but the first thing is, does it matter that there may be no alternative plaintiff in these cases? Walter said something about the disappointed bidder, that is, the person who applies for a grant and is denied. I don’t think that a disappointed bidder will have the kind of standing to challenge the program overall; they have standing to challenge their denial, but the only remedy for them is rebidding, right? The ordinary remedy for them wouldn’t be to terminate the program.

So if you and I are both applicants for a grant to operate a homeless shelter, you get it and I don’t and I say, well, wait a minute, he shouldn’t be able to get it because he’s a religious organization. I’m not so sure or – that they favored my religion over his, or his religion over mine. I’m not sure that I’ll be able to get a remedy that holds the statute as a whole, the grant as a whole, unconstitutional. So I’m not sure about that.

So first the question of, should it matter whether there’s an alternative plaintiff? And, second, the more technical question of, is one who is a bidder in these cases for a grant and is disappointed, would that be the appropriate plaintiff? Alex?

LUCHENITSER:  I’ll start off. Let me answer the first question in two ways. I think the Supreme Court has said that it does not matter if nobody can bring a case for standing purposes. But I think that that answer is wrong, that it should matter because if no one can sue to enforce a particular constitutional provision, that provision, or at least that portion of that provision, is effectively read out of the Constitution.

And if the Supreme Court can effectively render one part of our Constitution meaningless, it can do that to any other part of the Constitution. I know there are some people in this room who believe that standing should be narrowly construed, and the Supreme Court might start doing that with respect to provisions of the Constitution that more-conservative people might not think should be construed broadly, but that can be turned around to other parts of the Constitution. I think it’s a very bad principle that – the fact that no one can sue does not mean that there should be standing.

TUTTLE:  Walter?

WEBER:  Yeah, I agree with Alex that the Supreme Court has said explicitly that the fact that no one might be able to sue is not a reason to create standing. But I think that’s not as bad as it might sound because the judiciary is not the only branch of the government; there is always a political remedy. If the Congress and the executive do things that rub enough people the wrong way, there’s going to be a political consequence and they’re going to get voted out.

All of the other areas where I talked about taxpayers not being able to stand, does that mean those areas of the Constitution are nullities? I don’t think so. It’s kind of like you’re disciplining your kids, right? You want them to do what you’re going to say even if they know they can get away with it. And it’s the same thing with the federal government or any government official. You want them to do what’s right because it’s what the rules are, not just because someone’s going to be able to sue them over it.

Now, one of the examples we used in our brief – and I guess it’s an odd example because I don’t think it’s ever been violated – is Constitution Section 1, Article – well, anyway, I’ll just read you the provision: “No title of nobility shall be granted by the United States.” Okay? So President Bush decides that Bruce Springsteenis not getting enough recognition. He wants to make him a baron or knight him or something. (Laughter.)

Well, Springsteen’s not going to complain; he’ll either accept it or he won’t accept it. Who can sue? No one can sue. So is that a nullity in the Constitution? Is it just because they’ve been on good behavior for 200 years that we don’t have earls and barons and dukes and knights in this country? I think that’s the way the government is set up, is the things that are individual rights, the individuals get to sue; the things that are structural, we’re trusting to political enforcement.

LUPU:  I think it’s a mistake to think that we should have a one-size-fits-all idea about this. I think Flast v. Cohen very much rests on the idea that the – the political dynamics of the government choosing to support religion or not present a unique and difficult problem. I mean, typically, if the government is going to establish or promote a religion, it’s going to establish or promote a majority religion. It doesn’t have to be that way. There are sometimes special acts taken to accommodate or facilitate minority religions. But much more typically, if the government is going to promote or subsidize religion, it’s going to promote majority religions. So that the ordinary political safeguards that you might rely on to stop Congress from doing something unconstitutional or bad are not always so reliable when majoritarian sentiments are being approved.

When Congress decides to make Bruce Springsteen, Baron Springsteen, a lot of people might be upset about that, right? Some of it is, hey, what about me? I want to be a baron. But a lot of it is going to be, wait a minute, you’re suddenly making him a royal or a noble and we’re a country of equal citizens.

WEBER:  You may be underestimating his support.


LUPU:  Well, listen, I will tell you something, Walter. Thank you for choosing this hypothetical one. When I teach standings in my class, I always pick title of nobility and I take the dean of the law school and not Bruce Springsteen. But one of the things I say to my class, and I’ll say it here too, is that it really offends me. Two things: No. 1, I hope there’s nobody in the room that I’m talking to here, but there might be. When people leave high public office – senator or justice – and they tend to keep their title. I say, no, that’s not right. You’re a senator when you’re in the office of senator, and when you’re out of the office of senator, you don’t have the title anymore. It’s not a title of nobility, okay? It’s a title of public office because we don’t have titles of nobility.

Obviously, there’re customs to the contrary, right? People talk about the Kennedys as America’s royals – ooh, I want to take the newspaper and throw it across the room when I read that. (Laughter.) We don’t have royals! Does anybody read the Constitution? There’re no titles of nobility, right? It’s not Prince Ted. (Laughter.) Okay, whatever sympathy we have for Ted and his medical circumstances, he’s not a prince. He’s a senator now, but he won’t be when he’s not a senator anymore.

That one, you know, that’s the culture; that’s not the government. The government doesn’t make the Kennedys princes. Yes, the culture may; the government doesn’t. I think that we can have some comfort that the government won’t grant titles of nobility for the reasons I’m saying. I don’t think we can have nearly the same comfort that the government won’t support or subsidize religion. So it may really matter to say, we need a mechanism for judicial enforcement; the political branches can’t or won’t do it on their own. That’s why we’re going to make an exception for taxpayers here and maybe here alone.
All three

TUTTLE:  Okay. We’ll take some questions.

ETHAN MARON, ACLU:  I’m a summer law clerk at the ACLU for the national capital area. Mr. Weber, you made one point which I’d just like to probe a little bit, if I may. You were talking about the fairness argument to point out that, well, you can’t have taxpayer standing for the nobility thing or for the Frothingham maternal aid program. So it’s fundamentally fair to construe the Establishment Clause exception as narrowly as possible as well.

And the only question I’d have about that is, in fact, the Founding Fathers had some very strong arguments for why government entanglement in religion poses a unique threat to the republic. Madison, in his memorial remonstrance against religion, made impassioned arguments about how the entanglement of the two poses grave peril to them both. Thomas Jefferson made similar arguments based upon the history they saw at the time.

And I think we’ve certainly seen similar history since then. The Frothingham case, for example, whether or not that spending program was constitutional, it would be hard to argue that aid for maternal health really threatens the welfare of the republic – (chuckles) – in quite the same way. So what I’m just curious about is, could you talk a little bit more about why you think that this idea of fairness really does have enough meat to it to say that it does make sense to treat the Establishment Clause the same as every other provision of the Constitution. Thank you, sir.

WEBER:  Sure. I guess what I would say is that the founders decided what was important enough to put in the Constitution. And all of those were normative judgments and they had to be made by consensus. I don’t know that we can say with confidence – or certainly with infallible authority – that the Establishment Clause is the only peak that rises above the rest of the mountains.

The founders were very concerned about an overreaching federal government as well. I’m not sure that if you polled the man in the street, you’d find that they’re as concerned about government giving grants to have a faith-based program somewhere. I know that the ACLU and separationist groups certainly would be. But to the average citizen it may not be at all anywhere near as threatening as having the federal government tell them they’ve got to wear a helmet when they ride a motorcycle or that they have to do certain things with their buses when they ride them across state lines or something like that.

In other words, what I’m saying is that I think that what Flast is, is a concealed – maybe not even that well concealed – value judgment that Establishment Clause cases are so important that we’re going to make an exception to the normal rules. And my point was, if you want to agree with that and make that point, fine, make that point. But the general rule, I would think, in terms of the fairness – we all have the same rules. You may like these, you may not like them, but they should be the same for everybody because they’re going to be people who feel very strongly about the federal government taking whatever percentage it is now of your tax money and spending it on all kinds of programs that really aren’t the federal government’s business. I mean, is it as dramatic as religion? Well that’s going to depend on your perspective, I think.

LUPU:  I’m going to add something here on Walter’s side. Walter thinks I’m hardly ever on his side, but Madison would not have been a fan of federal spending on maternal and child welfare. He had a narrow view of the spending power. Other people had a broader view. Whether the courts should be able to enforce the narrow view is a separate question. Madison had a narrow view of that.

LUCHENITSER:  Let me respond real quickly to Walter’s view. Even if it is unfair to treat the Establishment Clause differently from other portions of the Constitution, that does not mean you should eliminate taxpayer standing in Establishment Clause cases. It means that taxpayer standing should be expanded to other portions of the Constitution, at least those portions where the primary harm is an unconstitutional use of tax money as opposed to cases where the primary harm is something else.

WEBER:  I think that’s right. Two ways to solve the fairness problem – take away the privilege or give it to everybody.

RON MILLAR, SECULAR COALITION FOR AMERICA:  Since Hein puts part of the burden on Congress, on how specific they are in allocating funds, I was wondering if there’s a legislative solution to standing. Following the Smith case, we saw Congress step in and give us RFRA [Religious Freedom Restoration Act], which was partially overturned by the courts, and then we got RLUIPA [Religious Land Use and Institutionalized Persons Act], and it seems like that’s a much broader interpretation of the Constitution than we would have with standing. I was just curious about your thoughts on if Congress could intervene.

TUTTLE:  Let me add just a little bit to that question. I assume the issue is whether or not Congress, consistent with Article III, could say taxpayers shall have standing in any case arising out of the challenge to an expenditure by the federal government, period.

LUCHENITSER:  I’ll try to start it off. I think there’re two answers to the question. One, I think Congress certainly would have the power to pass legislation that says taxpayers shall have a private right of action to challenge any spending in support of religion by the federal government regardless of whether the spending is executively authorized or legislatively authorized.

Two, short of that, Congress can also take action in specific authorization and appropriation bills to ensure that there’s no issue of standing if the money’s later used for religious purposes. As long as Congress says that the executive shall not discriminate against religious organizations in deciding whether or not to award funds under a particular program or that Congress contemplates that religious organizations may be recipients under this program, that would be enough to solve any standing question. So Congress could go address the issue that way on a case-by-case basis.

TUTTLE:  It is an interesting irony of Hein – not of J. Hein, but of the Hein case – that had the administration been successful in getting a statute enacted government-wide protecting the faith-based initiative, or promoting a faith-based initiative, that the case might have come out the other way. Just an irony. (Laughter.) Walter?

WEBER:  Bob, on the standing question. I apologize for not having the case at my fingertips, but I’m pretty sure, contrary to what Alex said, that there’s a Supreme Court case saying that Congress can’t expand on Article III.

TUTTLE:  Right.

WEBER:  Luhan? Okay. So it might not be so easy. Of course right now, you have Flast on the books still. So to the extent that it’s just taking Flast and maybe tinkering at the margins, it’s possible that they could do it under Section 5, the 14th Amendment, but that would be a whole separate area of very complicated issues.

LUPU:  Yeah, I have a couple of thoughts on this. First of all, even if there’s authority to do it, and I think there probably is, at least as of now, I’m wondering why Congress would do it. Why do it? Say, well here, we’re going to create programs and we’re going to spend for these programs, but we want to make sure people can sue us in case – (laughter) – the money’s being spent for religion. You know?

It’s possible that there would be people who supported the program and supported the expenditure but wanted to make sure it wasn’t being spent on religion and therefore wanted to authorize the suit. But if that’s what you want, if you’re in Congress and you say, look, we think social services are great; we want to spend money on social services, but we don’t want to support religion. Then the straightforward thing to do is to say, but don’t give the money to any religious providers, right? Just be direct about it and not say, the executive branch can give the money to whomever looks best, but we’ll authorize the courts to step in if the executive branch gives it to the wrong people.

There’s a circuitousness to all of that. And you can imagine the politics that would lead to that – oh, we don’t want to look like we’re against religion, but we want to make sure there are lawsuits, and we’ll let the courts do the dirty work, or the clean work, of cleaning it up. So you can imagine it, but the politics of that are actually very complicated. And on the program-specific thing, I think that’s right. Congress could always say: In this program for substance abuse services, we intend there to be inclusion of appropriate religious providers if they provide the appropriate service. And there’s some interesting tensions now in that question.

If you’re in Congress, do you say – if you really believe that that’s a good thing – do you say, wow, let’s make sure that even the Obama administration has to spend money for religious providers of those programs by putting it in the statute that religious providers are eligible? But wait, if we say that religious providers are eligible and we say it in the legislation, then we know the taxpayers can sue. So we’re better off if we don’t say anything in the legislation about what kind of groups can get the money and just kind of hope and trust that the Obama administration will do the right thing. So there’s some complicated and conflicting incentives for legislative solutions of various kinds here.

DENNIS COYLE, CATHOLIC UNIVERSITY:  Thank you for a very entertaining and intelligently presented panel, but I think your next one should be on the Nobility Clause – (laughter). My question is in regard to application of Hein to the states. I know you had an aside about – well it’s radical to think that the Establishment Clause does not apply and that’s a fascinating topic– reading the Constitution would suggest that it does not apply, but that’s another panel.

Assuming it does apply, I think you’re suggesting that the Hein narrowing should not apply in the state context? If so, I want to clarify that. I can understand why it wouldn’t locally because of the different status of local taxpayers, and perhaps it was misapplied in the Kentucky case if indeed and correct that there was enough evidence of state legislative supportive for the spending. But why in general would Hein not apply at the state level?

LUCHENITSER:  I think the only way to make sense of Hein and to read it in a logical and rational way is to rely on Justice Kennedy’s concern about ensuring there is no ongoing, intrusive, judicial monitoring or oversight of internal executive branch activity or executive branch speech. Justice Kennedy explains that that relates to the separation of powers because it would violate the separation of powers for a federal court to enjoin such internal activity by a co-equal branch of government – the executive branch. However, there are several Supreme Court cases that have held that the separation of powers does not apply to the federal judiciary’s relationship with the states.

For example, the Baker v. Carr case – the landmark case concerning apportionment of congressional voting districts – rejected an argument that the political question doctrine prohibited the court from deciding the case because the court explained that that doctrine was a species of the separation of powers, and the separation of powers did not prohibit federal courts from restricting activity by the states. So since the separation of powers does not apply to the relationship between the federal courts and the state, there’s no reason to apply Hein’s distinction between legislative and executive action in the state government context.

TUTTLE:  But Alex, why would not federalism then apply? And particularly, given the history of the Establishment Clause, why wouldn’t federalism concerns rise whenever you think about federal court supervision of state action? If the federal judiciary is being solicitous of other federal branches, it seems there would be even stronger argument to be solicitous of state governments?

LUCHENITSER:  That’s a very good question. Federalism concerns may be legitimate, but they have nothing to do with whether the action in question is executive or legislative. The Supreme Court has reaffirmed on numerous occasions the right of state taxpayers to challenge government spending in support of religion by states. The Supreme Court has held so explicitly three times. So to the extent that federalism concerns may be applicable, perhaps it could be applicable in a case with very similar facts to Hein, where the issue is internal speech or internal operations by a state government. But there’s really no logical justification to read Hein broadly in the state context and use Hein to prevent state taxpayer standing in a case where a state government is making grants to a private religious organization outside the state government.

LUPU:  I think this is a variation on a similar theme. It’s hard to see that there’s any really persuasive, internal logic to the distinction between specific legislatively authorized spending for religion or executive branch spending where there’s some more generalized authority. This is an artifact; this is the product of – Flast v. Cohen was decided 40 years ago. It was about an act of Congress.

Now we have a majority of the Supreme Court that has a less hospitable attitude toward taxpayer standing in Establishment Clause cases. They were looking for a way to say the cases are different. Five of them didn’t want to overrule Flast v. Cohen, so they had to find a way to say that Hein was different from Flast v. Cohen. How was it different? Executive spending instead of legislative spending. It’s very hard to unpack the case, an internally logical case, why there’s a difference between legislative and executive branch spending.

And because that’s true even at the federal level, it’s at least as true, maybe even more true, at the state level where, as Alex says, there’s a sort of black box quality to the federal courts. We don’t care what part of the state government did it, we just care what you did, right? And what do we care if it’s the governor who did it or the state legislature who did it? We just care whether it violates some federal law or the Bill of Rights. So whatever the internal logic is at the federal level, it’s at least as minimal and probably less at the state level.

Now, here’s the last thing, a little plug, right? This is time for a plug? This is an article  that Professor Tuttle and I have recently published in the Brigham Young University Law Review. I won’t read you the whole title; it’s too long, but it’s volume 2008, page 115 in the Brigham University Law Review – all about Hein and some of the questions we’re talking about today, where we actually spend some time talking about the state and local government variations on this.

TUTTLE:  We have a few copies of it just to the left of the stage, up here.

STANLEY CARLSON-THIES, CENTER FOR PUBLIC JUSTICE:  I wanted to return to the previous question, and my recollection is at least some versions of charitable choice actually say that a suit is possible if the money is spent inappropriately. Is that not correct?

LUPU:  Stanley, I think it authorizes people who are denied funding to sue. I don’t think the provision you’re talking about authorizes people like Alex to sue. People who say, no, no, no, money shouldn’t be going to religion at all.

TUTTLE:  You’re talking about the 1996 and following the – I think the only lawsuits that are authorized are those by, essentially, disappointed bidders.

LUCHENITSER:  Let me follow up on something Walter said. I think if Congress were to pass a statute saying the executive branch should not discriminate against religious organizations in awarding money but the money cannot be used for religion, and then add to that statute that taxpayers shall have a private right of action to enforce the ban on spending in support of religion, I don’t think there would be any question about whether such a private right of action would be constitutional because Congress would not be attempting to change Article III or rules on when a taxpayer can enforce the Constitution. Congress would just be giving taxpayers the right to enforce a particular statutory restriction it passed.

TUTTLE:  It’s a very interesting question because Luhan v. Defenders is how many years old? A few. It’s a question involving environmental statutes about when Congress can essentially license taxpayers who but for the statute have a sufficient injury to claim enforcement of the statute. You’d have to navigate very carefully around the boundaries of that opinion.

DOMINIQUE LUDVIGSON:  I was associate director for legal affairs in the Faith-Based Office during the Hein litigation. Professor [Douglas W.] Kmiec has recently opined that the reason why the Supreme Court came down the way that it did in Hein was because there’s an overall rethinking going on about how it wants to approach Establishment Clause cases, and if they would cut off standing completely in Establishment Clause cases, it would not allow cases to come before the court or the right types of cases, I guess, to come before the court, where they could flesh out a different view, maybe, of the Establishment Clause or an evolving view of the Establishment Clause. What do you make of that argument?

LUCHENITSER:  Well, let me try to take that first. Do I understand correctly that the question is, did the Supreme Court refrain from overruling Flast entirely in Hein because it wants to make certain substantive rulings?

TUTTLE:  Well otherwise, the docket would have been frozen.

LUPU:  To keep the flow of cases.

LUCHENITSER:  I think it’s possible that the four most conservative justices of the Supreme Court might have felt that way, but I doubt that that’s what Justice Kennedy was thinking in Hein as well as some of his earlier opinions. Justice Kennedy reaffirmed the Constitution’s concern about direct use of cash government payments to advance religious activity. I think based on what he said in his opinion and also the questions that he asked in the oral argument of Hein, Justice Kennedy’s main concern was really – it might have been better put as a variation of the political question doctrine – that this type of internal executive branch activity should not be subject to second-guessing or injunction by courts.

That was his main concern, and I think it’s unfortunate that he did not write a separate concurring opinion solely focused on that concern, because by joining Alito’s opinion, which expresses more broad concerns about legislative vs. executive authorization, I think that has created a whole lot of mischief in the lower courts reading Hein very broadly. I somewhat doubt that Justice Kennedy realized or intended to lead to all that.

TUTTLE:  Walter, did you want to respond to that?

WEBER:  The justices who are the most eager to reshape Establishment Clause jurisprudence are Scalia and Thomas, and they voted to overrule Flast, so that theory cannot explain their vote. They wanted the door shut. I think that they were putting their position, their principle, above any kind of practical concerns.

The other thing is, well, like Roberts, I think, it’s easy to explain. Again, assuming that we’re dealing with psychological motivations and not just a fair reading of the law, he’s made it real clear that the court should decide no more than it needs to decide in a case. Assume for purposes of argument that he thinks Flast was wrong and should be overruled. You couldn’t muster a majority to do it and arguably didn’t have to do it, so therefore you can’t do it. You just say what you have to say and that’s it, no more.

LUPU:  I think Professor Kmiec’s argument is too clever by about three-quarters, okay? If you had an agenda, aside from what Walter said about commitments of principle – Scalia and Thomas had certain commitments and Roberts had certain other commitments about not being activist and overruling prior cases, whatever it is. Assuming you have an agenda, you’d like to reshape Establishment Clause law.

It would be the way to do it, to make sure there’s a steady flow of cases to this particular Supreme Court? Why? You win some; you lose some. You lose the cases that come up in the public schools about prayer at graduation and football games. You win most of the funding cases. You lose one Ten Commandments case; you win the other. You win a crèche; you lose the other. And you don’t know who the next president is going to be, right?

And if the next president’s going to be on the other side, you get a steady flow of cases four or five years from now, and maybe you get smacked around on Establishment Clause in the Supreme Court. So that leaves a sort of different scenario – an agenda, right? But not an agenda, but a problem. Suppose you could cut off standing for taxpayers; you have Scalia and Thomas’ view and you won – no taxpayer standing.

Now you take the next step and say, what’s this observer standing about? You can’t sue about other things you observe that bother you – unfair trials, cruel punishment – so why should you be able to sue about the Ten Commandments or the Christmas crèches? So let’s get rid of those too. All we’d have left is the school cases I think because those rest on a different theory of coercion of particular students.

Okay, so now we’ve eliminated from the lower federal courts the funding cases and the observer cases. So we have this really interesting anomaly: We haven’t changed the law; the law is still whatever the law is about funding and about government promotion of religion by symbols or signs or messages, but what we’ve done is to make it really hard to sue the government when it violates the law.

TUTTLE:  The federal government in federal court?

LUPU:  Yes, yes, well, in federal court. So maybe we’ve shut the federal courts down to most of these cases, so unless the state courts are open – if you’re the mayor or the city council and say, do we want to put a cross on the lawn of city hall, if we think nobody can sue us for doing it and it’s locally popular, then maybe we’re going to do it.

Now, this does leave open the possibility of state courts about which we have not spoken. State courts are obliged to be open to federal constitutional claims. They may or may not have the same standing rules. Yes, they may; they may not. So perhaps you can go to state courts, and the old funding cases before Flast always did start in state courts because that’s what you had to do.

Now you have a whole complicated story about an independent judiciary and the difference between elected judges and not-elected judges and whether state court judges are going to have the courage to say, take that cross down from in front of city hall. Why? Because the federal Constitution requires it even though no federal court would be open to somebody to get them to say it.

That’s a really interesting story about what might happen in a world where the standing rules in the federal courts really shrunk aggressively.

RONALD LINDSAY, CENTER FOR INQUIRY:  This is a question to Mr. Weber because I want to prove the implications of the position of his organization, the American Center for Law and Justice. I take it it’s fair to say that your organization believes that taxpayer standing in Establishment Clause cases should be done away with because, in your view, it’s a special privilege?

WEBER:  Right, we argued for overruling Flast in our amicus brief.

LINDSAY:  Right. Well, I want you to consider this hypothetical – it’s inspired by something I actually saw on your website, which I do visit occasionally. Your organization expressed extreme outrage recently about a school – I think it was in Texas – that had some representatives from an Islamic group go speak there. I think your organization said that they went beyond just talking about comparative religion but actually were talking about the wisdom of Islam – essentially, they were preaching or advocating their religion.

Well, let’s assume that this is a federal grant given to this Islamic group to go to schools around the country and to give that type of address that your organization objects to and, for whatever reason, students and the parents of students don’t want to object to it. You’re approached by a taxpayer who does object to that. Would your organization refuse to take that case on grounds of principle?

WEBER:  I don’t make the decisions on which cases we take so I can’t answer that. But, two responses: First of all, in the hypothetical that you set up, those are the kind of cases where – I guess as Bob was saying – it’s actually pretty easy to get standing as long as you can find someone in the school or their parents who want to object to the program. They may catch flack about it, they may get ostracized, but, by and large, that standing is not an issue.

The broader question, which is really important for us all to consider, is to remember that the Establishment Clause cuts both ways, all right? Some people like traditional Judeo-Christian faiths; some people don’t. Some people like Eastern religion; some people don’t. Some people like atheism; some people don’t. The Establishment Clause, in theory, applies to all of those, and it’s important when we formulate our rules that we make it in a way that we’re comfortable with what that means no matter whose ox is being gored. And that’s, I think, a real important point to make. Beyond that, I can’t give you a specific answer.

LARRY PEARL, ACLU:  I wondered about Professor Lupu’s hypothetical expansion of the standing doctrine – the narrowing of it – to other areas, and I wondered whether that hasn’t already been happening. Particularly, there was a case where the court rejected an attack on a statute on its face and said it had to be brought as applied – that was an abortion case from New Hampshire, I believe, last year.

Then also with respect to shareholder suits, they’ve really been tightening the standards to bring those suits. Both of those seem to be doing moving in the direction of narrowing standing.

LUPU:  There’s always a fight going on about the role of the federal courts –the role of the federal courts in relation to the states, the role of the federal courts in relation to business. Each of the cases you mentioned, as compared to the ones we’re talking about, have different particulars, and the doctrines are different and they may not even be framed as standing doctrines; they may be framed as who has the right of action and who doesn’t. There are lots of different ways to tell the story.

There is always an overarching conflict in this society about the role of the federal courts. Should it be expansive or should it be more limited? And I think certainly the chief justice has some sense for limitation, right? Pushing it in the direction of limitation? It won’t be uniform, that is, there’ll be some cases where he and others will say, well, this is a good one; we should be doing these and we shouldn’t be doing those.

So I don’t think this is unidirectional, and I don’t think it’s new that there are struggles about how expansive and open the federal courts should be to various kinds of claims.

LUCHENITSER:  Yeah, I don’t want to be too cynical, but I think it often depends on what the court thinks of the merits of the case. If the court is worried about the merits of the case, I don’t think the court is going to say that there’s no standing. At least so far, from what we’ve seen in the Roberts court, there’s been a mix. The court has found standing in some cases and has not in other cases. Maybe we don’t have enough data points, but so far I don’t see a huge trend toward closing the courthouses to virtually every litigant where the question is unclear.

TUTTLE:  What about observer standing? Do you think that the logic of Hein or the understanding of the Establishment Clause in Hein suggests that observer standing should meet the same fate as the more ambitious reading of taxpayer standing met in Hein?

LUCHENITSER:  I can go first. Yeah, I think that, one, Hein and the Daimler-Chrysler Corp. case that was decided the previous term – they both reaffirmed the concept of psychic injury in Establishment Clause cases, and that is the injury that is suffered when an observer sees a religious display or sees or hears or is present for a prayer –

UNIDENTIFIED:  Excuse me, what reaffirmed that besides Hein itself?

LUCHENITSER:  Daimler-Chrysler Corp. v. Cuno because Daimler-Chrysler Corp. recognized –

LUPU:  It wasn’t about psychic injury but there was some reference to psychic injury.

LUCHENITSER:  Right, it reaffirmed that the injury in the Establishment Clause is psychic. Taxpayer cases is the spending and extraction of tax money in support of religion. I mean, it reaffirmed that it is not a financial injury. So I think Hein again, especially if you look at Scalia’s concurrence – but I think if you look at the other opinions too – recognizes that the injury is not a financial one but a psychic one because otherwise the court would have decided the case on entirely different grounds.

So given what’s been said in those two cases, I think it would at least be unprincipled for the court to turn around and say there’s no standing in religious display or other types of observer cases. I would also point out that very recently in 2005, the Supreme Court decided two cases dealing with displays of the Ten Commandments on public property, and no justice even questioned standing.

So I think that if the Supreme Court was going to make a big deal about observer standing, I think at least some justices would have raised it at that point. But on the other hand, given that Hein has made it much harder for taxpayers to sue in cases challenging prayers at the opening of legislative sessions, it’s doubly important that observer standing remain alive after Hein.

TUTTLE:  Thanks Alex – Walter.

WEBER:  The closest thing that the court has ever said about the issue as opposed to how it’s acted I think is in the Valley Forge case, where the court said that psychic injury of observing something you disagree with is not sufficient for Article III standing. But the court has never actually talked about applying that rule in any of the offended-observer cases. They’ve just taken the cases and decided them without discussing standing.

So, for whatever reason, they haven’t been very eager to get into that issue. I don’t know why and I don’t know what they would do with it if they took it. But I suspect that it would be very fact-dependent and here is why: I think that there is something intuitive about the idea that, I read a newspaper article and see something happened in California or something happened in Michigan; I’m all upset about it; I march into court – I don’t have standing; I shouldn’t have standing, it’s ridiculous. As opposed to: My kid goes to school and they say you’ve got to view this film program that is going to essentially brainwash you – in my opinion – on some particular issue. Now I’m the parent who’s upset about it.

Well, that’s got an element of coercion in it. Now all it is, is offended-observer, but it’s coerced offended-observer. So then what do you do with all the in-between cases, where the guy says, well I’ve got to walk that way to get to work, so I go past it every day? Well, can’t you look away? Yeah, I could look away, but do I have to look away?

Or, I work in the building, right? I’ll get fired if I don’t go, but I have to walk down this hallway and there it is staring me in the face every day. So maybe the reason they’re not taking it is just because it’s so fact-sensitive they want the lower courts to keep dealing with it. I don’t know.

LUPU:  There’s an interesting analogy here, and we have a long footnote about it on this article that’s on environmental cases. We question who can complain. The government wants to spoil some piece of the wilderness, and you have to be able to allege you use it. It’s not enough to say it’s really going to bother me if the Alaskan tundra gets despoiled. You have to say, I’m a photographer, I go visit animals, I have nature interests – professional interests – in the place.

So but it’s still kind of psychic injury most of the time. You don’t have to say, and the place where I’ll take my photos will no longer have the penguins or – there are no penguins in the Alaskan tundra, wrong animal – but a reindeer, moose, whatever it is. So there’s this really interesting connection between environmental injury cases – psychic, aesthetic – and the religious injury observer cases.

TUTTLE:  Gentlemen, we are out of time. Thank you all so much for coming. Thanks to Walter, Alex and Chip for wonderful presentations, and thanks to the organizations that have hosted us today. We enjoyed it very much. Thank you.

This written transcript has been edited for clarity, spelling, grammar and accuracy by Amy Stern.

Photo credit: Brooks Kraft/Sygma/Corbis