Taxpayers Powerless to Insist on Church-State Separation
Hein v. Freedom From Religion Foundation, Inc, No. 06-157.(7th Circuit) - Decision 06/25/07
"The government in a free society may not force a citizen to contribute three pence only of his property for the support of any one establishment of religion." ~James Madison
In Hein, the Supreme Court – including Chief Justice Roberts and Justice Alito – got to close the courthouse doors to citizens seeking the vindicate their rights, while, at the same time, limit precedent which serves to enforce the First Amendment's Establishment Clause. The Court decided that, while James Madison's quote may be true of Congressional expenditures, the same does not hold true for the Executive Branch. In a circular opinion, which even Justice Scalia called "meaningless and disingenuous," Justice Alito wrote for the plurality that federal taxpayers do not have standing to challenge executive branch violations of the Establishment Clause.
In 1968, the Supreme Court decided Flast v. Cohen, holding that while taxpayers as a general rule may not challenge government expenditures with which they disagree, there is a special exception for Establishment Clause suits. In creating an exception to the rule against "taxpayer standing," the court recognized the high value our free society places on the constitutional separation between Church & State.
Sadly, a majority of the Roberts Court voted to undercut this precedent--attempting to distinguish Congressional spending of funds for religious purposes from virtually identical Executive Branch expenditures. Even more troubling is that Justice Alito wrote that the federal taxpayers in this suit cannot even get into court to challenge President Bush's decision to spend his congressional funds on religion. This is yet one more success story for the conservative agenda of building a "unitary executive" theory into the Constitution.
In one of his many colorful concurrences, Justice Scalia, joined by Justice Thomas, called the majority out for their faulty line of reasoning in attempting to distinguish Flast from this decision:
"Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future."
While we agree with Justice Scalia's attempt to point out the majority's circular rhetoric, he goes on to suggest that the Court should have simply overturned Flast altogether. This logic is a far cry from what the founders envisioned as individual religious liberty, and it attempts to eviscerate the Constitution's robust protection against the dangers inherent in allowing government endorsement of religion.
In his dissent, Justice Souter pointed out the many flaws in the majority's reasoning and discussed the Madisonian relationship between tax money and conscience that the majority should have considered in its ruling. But despite the pleas of the four dissenters, and in what can be viewed as another successful case for the new ultra-conservative wing of the court, Justice Roberts and Alito have done exactly what they intended: close the court house doors to yet another group of individuals.
