Hein v. Freedom From Religion Foundation
Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007), was a decision by the United States Supreme Court which ruled that taxpayers do not have the right to challenge the constitutionality of expenditures by the executive branch of the government.[1] The issue was whether taxpayers have the right to challenge the existence of the White House Office of Faith-Based and Community Initiatives.[2] The case centered on three Supreme Court precedents: Flast v. Cohen,[3] Bowen v. Kendrick,[4] and Valley Forge Christian College v. Americans United for Separation of Church & State.[5]
Hein v. Freedom From Religion Foundation
Hein, Jay, et al. (Dir., White House Office of Faith-Based and Community Initiatives) v. Freedom from Religion Foundation, Inc., et al.
Alito, joined by Roberts, Kennedy
Kennedy
Scalia (in judgment), joined by Thomas
Souter, joined by Stevens, Ginsburg, Breyer
In a 5–4 vote the Supreme Court ruled that the Foundation did not have standing to sue and reversed the court of appeals.
Background[edit]
In January 2001, President George W. Bush created the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President by an Executive Order. Later Executive Orders created centers for the Office within the Departments of Justice, Labor, Health and Human Services, Housing and Urban Development, Education, and Agriculture, as well as at the Agency for International Development.[6]
The Freedom From Religion Foundation and three of its members (Anne Nicol Gaylor, Annie Laurie Gaylor, and Dan Barker) filed an action against the Director of the White House Office and the Directors of Centers of the Office created within the above-mentioned Federal Departments.[6] The Foundation and its members asserted standing based solely on their status as federal taxpayers.[6] It was noted that "Because the Foundation itself is a non-profit entity that is exempt from paying federal income taxes under 26 USC 501(c)(3), the Foundation lacks taxpayer status in its own right, and can assert it, if at all, only on behalf of its taxpaying members. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976)."[6]
The Foundation and its members complaint was over "the use of money appropriated by Congress under Article I, section 8, to fund conferences that various executive branch agencies hold to promote President Bush’s 'Faith-Based and Community Initiatives.'"[6] The Foundation held that "the defendant officials violated the Establishment Clause of the First Amendment by organizing national and regional conferences at which faith-based organizations allegedly 'are singled out as being particularly worthy of federal funding because of their religious orientation, and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.'"[6] They also alleged that "the defendant officials 'engage in myriad activities, such as making public appearances and giving speeches, throughout the United States, intended to promote and advocate for funding for faith-based organizations.'"[6] They further asserted that "Congressional appropriations [are] used to support the activities of the defendants."[6]
The Foundation and its members sought a "declaratory judgment that the officials' activities violate the Establishment Clause, an injunction prohibiting further 'use [of] appropriations in violation of the Establishment Clause,' and 'an order requiring the defendants to establish rules, regulations, prohibitions, standards and oversight to ensure that future appropriations' comport with the Establishment Clause."[6]
The Directors of the White House Office and its centers, moved that the complaint against them be dismissed for lack of standing.[6]
Lower courts[edit]
District court[edit]
The motion to dismiss the complaint for lack of standing was granted by the United States District Court for the Western District of Wisconsin. The court held Establishment Clause challenge standing was limited to "exercises of congressional power under the taxing and spending clause of Article 1, § 8."[6] They held that the action of the directors "are not 'exercises of congressional power' as required by the Flast test."[6]
The court noted that in Bowen v. Kendrick,[4] it was "clarified that the disbursement of federal funds by an Executive agency in the administration of a congressional program could be challenged consistent with Flast",[6] but they pointed out that "The President established the White House OFBCI by Executive Order and funded it with general budget appropriations."[6] They found that this meant that the Director of the office and other officials working within the program "have no congressional mandate. Rather, he acts at the President’s request and on the President’s behalf", so none of them were "charged with the administration of congressional programs."[6] They stated that "The view that federal taxpayers as such should be permitted to bring Establishment Clause challenges to all Executive Branch actions on the grounds that those actions are funded by congressional appropriations, has never been accepted by a majority of the Supreme Court."[6]
Supreme Court proceedings[edit]
Petition for certiorari[edit]
The government petitioned the Supreme Court to hear the case saying that the appeals court decision "transforms taxpayer standing in the Establishment Clause context from a narrow exception, designed to prevent the specific historic evil of direct legislative subsidization of religious entities, into a roving license for any 'individual citizen to challenge any action of the executive with which he disagrees, as violative of the establishment Clause.'"[6] The petition said the ruling "cuts taxpayer standing from its constitutional and historical moorings" and contravened judicial precedents "and the decisions of other circuits."[6] Certiorari was granted on December 1, 2006.
Supreme Court decision[edit]
Opinion[edit]
In a 5–4 vote the Supreme Court ruled that the Foundation did not have standing to sue and ordered the Appeals court finding reversed.
Alito plurality[edit]
The plurality opinion was written by Justice Alito, and was joined by Chief Justice Roberts and Justice Anthony Kennedy. Alito wrote "Flast focused on congressional action, and we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures. ...It is significant that, in the four decades since its creation, the Flast exception has largely been confined to its facts."[24] He wrote "The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. ...We have never found taxpayer standing under such circumstances."[25]
Alito cited Frothingham, "The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern ...Because the interests of the taxpayer are, in essence, the interests of the public-at-large, deciding a constitutional claim based solely on taxpayer standing 'would be[,] not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.'"[26] He also cited Lujan v. Defenders of Wildlife, which stated that "a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy."[27]
Alito wrote that he was not convinced that if they ruled for the Foundation it would not open a floodgate of lawsuits, "Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation or speech—to Establishment Clause challenge by any taxpayer in federal court."[28] In support of this he cited the Foundations own claim against the speech of Rod Paige that had been dismissed by the district court.
Alito also noted that to allow standing in this type of case "would also raise serious separation-of-powers concerns."[29] He cited Justice Powell's concurrence in United States v. Richardson: "'Relaxation of standing requirements is directly related to the expansion of judicial power,' and lowering the taxpayer standing bar to permit challenges of purely executive actions 'would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.'"[30]
Alito stated "Respondents set out a parade of horribles that they claim could occur if Flast is not extended to discretionary Executive Branch expenditures. For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes, or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened, even though Flast has not previously been expanded in the way that respondents urge. In the unlikely event that any of these executive actions did take place, Congress could quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing."[31]
Alito wrote that "It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That ... is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it."[32]
Kennedy concurrence[edit]
Justice Kennedy wrote a concurrence where he re-emphasized the concerns over separation of powers should the Appeals court decision not have been reversed. He also stated "It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations."[33]
Scalia concurrence[edit]
Justice Scalia wrote a concurrence (which was joined by Justice Clarence Thomas), where he agreed that the case had to be reversed but held that the Court had not gone far enough, "If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen, 392 U.S. 83 (1968), should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing."[34] He said the problem was because "We have alternately relied on two entirely distinct conceptions of injury in fact, which for convenience I will call 'Wallet Injury' and 'Psychic Injury.' ...Psychic Injury ... has nothing to do with the plaintiff's tax liability. Instead, the injury consists of the taxpayer’s mental displeasure that money extracted from him is being spent in an unlawful manner. ...this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being violated. ...We have never explained why Psychic Injury was insufficient in the cases in which standing was denied, and we have never explained why Psychic Injury, however limited, is cognizable under Article III."[35] Scalia wrote, "We had an opportunity today to erase this blot on our jurisprudence [Flast], but instead have simply smudged it."[36]
Souter Dissent[edit]
Justice Souter wrote a dissent and was joined by Justice Stevens, Justice Ginsburg, and Justice Breyer. Souter wrote that the plurality opinion "declares that Flast does not apply [in this case], but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent."[37] Souter continued, "We held in Flast, and repeated just last Term, that the "'injury' alleged in Establishment Clause challenges to federal spending" is "the very 'extract[ion] and spen[ding]' of 'tax money' in aid of religion."[38] "Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an 'established' religion".[39] Souter drew the conclusion that "[t]he right of conscience and the expenditure of an identifiable three pence raised by taxes for the support of a religious cause are therefore not to be split off from one another."[40] In response to Scalia's concurrence, Souter invoked Madison's work (see above) and wrote "The three pence implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the 'Psychic Injury' that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported ... Justice Stewart recognized this in his concurring opinion in Flast, when he said that "every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution,” and thus distinguished the case from one in which a taxpayer sought only to air a generalized grievance in federal court."[41]
Souter went over the qualifications for standing set by previous precedents, and concluded that they were all met in this case, "there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. Cf. Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 434 (1952) . The taxpayers therefore seek not to 'extend' Flast ... but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury. And once we recognize the injury as sufficient for Article III, there can be no serious question about the other elements of the standing enquiry: the injury is indisputably 'traceable' to the spending, and 'likely to be redressed by' an injunction prohibiting it. Allen v. Wright, 468 U. S. 737, 751 (1984)".[42] He also noted that "There will not always be competitors for the funds who would make better plaintiffs (and indeed there appears to be no such competitor here), so after accepting the importance of the injury there is no reason to refuse standing as a prudential matter."[43]
Souter held that removing Executive branch actions concerning Establishment Clause questions from Judicial review was dangerous. He said the majority opinion "points to the separation of powers to explain its distinction between legislative and executive spending decisions ... but there is no difference on that point of view between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one. We owe respect to each of the other branches, no more to the former than to the latter, and no one has suggested that the Establishment Clause lacks applicability to executive uses of money. It would surely violate the Establishment Clause for the Department of Health and Human Services to draw on a general appropriation to build a chapel for weekly church services (no less than if a statute required it), and for good reason: if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away."[44]
Souter disagreed with the majority's reading of Bowen, saying in that case "we already had found the statute valid on its face before we turned to the taxpayers' as-applied challenge ... so the case cannot be read to hold that taxpayers have standing only to claim that congressional action, but not its implementation, violates the Establishment Clause." Therefore, after Bowen, the majority opinion's "distinction between a 'congressional mandate' on the one hand and 'executive discretion' on the other ... is at once arbitrary and hard to manage: if the statute itself is constitutional, all complaints must be about the exercise of 'executive discretion,' so there is no line to be drawn between Bowen and the case before us today."[45]
The Justice stated that "While Flast standing to assert the right of conscience is in a class by itself, it would be a mistake to think that case is unique in recognizing standing in a plaintiff without injury to flesh or purse. Cognizable harm takes account of the nature of the interest protected, which is the reason that 'the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition,' leaving it impossible 'to make application of the constitutional standing requirement a mechanical exercise.'"[46] As a proof of this he asked, what of cases where a person was "being forced to compete on an uneven playing field based on race (without showing that an economic loss resulted), or living in a racially gerrymandered electoral district? These injuries are no more concrete than seeing one’s tax dollars spent on religion, but we have recognized each one as enough for standing."[47]
Souter stated "The judgment of sufficient injury takes account of the Madisonian relationship of tax money and conscience, but it equally reflects the Founders’ pragmatic 'conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions,' Everson v. Board of Ed. of Ewing, 330 U.S. 1, 11 (1947), and the realization continuing to the modern day that favoritism for religion 'sends the ... message to ... nonadherents "that they are outsiders, not full members of the political community,"'" McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005)."[48]
The Justice also agreed that the outcome of Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.[5] was based on the Property Clause of Article IV, §3 and so was not a viable precedent in this case.[49] Souter noted that the majority expressed their fear that a great many Executive branch actions would be open to lawsuit if they ruled for the Foundation, he said "that does not mean taxpayers will prevail in such suits. If these claims are frivolous on the merits, I fail to see the harm in dismissing them for failure to state a claim instead of for lack of jurisdiction. To the degree the claims are meritorious, fear that there will be many of them does not provide a compelling reason, much less a reason grounded in Article III, to keep them from being heard."[50]
Reactions to the decision[edit]
President George W. Bush expressed his pleasure at the majority's ruling, saying "Today's Supreme Court decision marks a substantial victory for efforts by Americans to more effectively aid our neighbors in need of help. The Faith-Based and Community Initiative can remain focused on strengthening America's armies of compassion and expanding their good works. Similar efforts by governors and mayors in states and cities all across the country can also continue to advance. ...This ruling is a win for the thousands of community and faith-based nonprofits all across the country that have partnered with government at all levels to serve their neighbors. Most importantly, it is a win for the many whose lives have been lifted by the caring touch and compassionate hearts of these organizations."[51][52][53]
Former Head of the White House Office of Faith-Based and Community Initiatives Jim Towey called the decision "good news for addicts and the homeless and others seeking effective social services. It's also a repudiation of the kind of secular extremism that ruled the public square for decades."[53]
Jay Sekulow of the American Center for Law and Justice said of the decision "This is a very significant victory that sends a powerful message that atheists and others antagonistic to religion do not get an automatic free pass to bring Establishment Clause lawsuits. ...This decision will have serious ramifications for separationist attempts to claim special privileges to sue as taxpayers without showing that a law or government activity actually injured them in any way. ...By rejecting a claim to special treatment for atheists and other separationists, the high court took an important step toward restoring equity to the legal system with respect to federal challenges in the Establishment Clause arena." The ACLJ concluded that the "decision continues the trend to rebuff efforts to build upon the questionable Flast precedent."[54][55]
The Rev. Barry W. Lynn of the Americans United for Separation of Church and State expressed his disappointment saying "This is a disappointing decision that blocks the courthouse door for Americans with legitimate church-state grievances. Taxpayers should be allowed to challenge public funding of religion, whether the money is allocated by Congress or the White House. However, it is important to note that this ruling applies to only a few situations. Most church-state lawsuits, including those that challenge congressional appropriations for faith-based programs, will not be affected."[53][55][56] Lynn called Justice Alito's statement that "Congress could quickly step in" if the Executive went too far as "quite incredible because the damage is done when the president acts. We have the courts to do precisely this, rein in the president or the Congress."[53]
Ralph G. Neas, president of People For the American Way Foundation, said the decision marked "a bad day for the First Amendment. The Supreme Court just put a big dent in the wall of separation between church and state."[53]