One year later, how have courts interpreted Hein<\/em>? How will Hein<\/em> affect the future direction of lawsuits involving the funding of religion? What insight does Hein<\/em> provide into how the current Supreme Court justices view church-state litigation?<\/span><\/span><\/span><\/p>\n\n 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.<\/span><\/span><\/p>\n\n Audio of this event is available at the Federalist Society’s website<\/a>.<\/p>\n\n Speakers:\n<\/strong>Alex Luchenitser<\/span><\/a><\/span>, Senior Litigation Counsel, Americans United for Separation of Church and State\nIra \u201cChip\u201d Lupu<\/a><\/span>, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School\nWalter Weber<\/a><\/span>, Senior Litigation Counsel, American Center for Law and Justice<\/p>\n\n Moderator:\n<\/strong>Robert Tuttle<\/a><\/span>, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School<\/span><\/p>\n\n Navigate this Transcript\n<\/strong>Who can sue in religion cases<\/a>\nHein<\/em> suit narrowly framed<\/a>\nLuchenitser: Correct way to read <\/a>Hein<\/a>\nHein\u2019s<\/a><\/em> impact in lower courts mixed<\/a>\nFlast<\/em> alone in authorizing federal taxpayer lawsuits<\/a>\nBaron Springsteen?<\/a>\nQ&A<\/a><\/p>\n\n DAVID MASCI<\/a><\/span>:<\/strong>\u00a0 I want to thank all of you for coming today and welcome you on behalf of the Pew Forum on Religion & Public Life<\/a><\/span>, The Federalist Society<\/a><\/span> and The Constitution Project<\/a><\/span>. It\u2019s my great pleasure to welcome you to a discussion on the impact of the Hein <\/em>decision, one year after the Supreme Court ruled in this case. My name is David Masci, and I\u2019m a senior research fellow here at the Pew Forum.<\/p>\n\n 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\u2019t take positions on policy debates, including the one we\u2019re going to be having today.<\/p>\n\n As I just mentioned, the Forum\u2019s 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\u2019s Dean Reuter and David Ray were both instrumental in planning this event, and I want to thank them both publicly for their hard work.<\/p>\n\n 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\u2019s president, Ginny Sloan, and its senior counsel, Sharon Bradford Franklin, also played a very important role in organizing this event, and I\u2019d like to thank them as well for their hard work today.<\/p>\n\n We\u2019re 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\u2019s agenda.<\/p>\n\n 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\u2019s 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.<\/p>\n\n ROBERT TUTTLE:<\/strong>\u00a0 Thanks very much, David. It\u2019s a pleasure to work with you all in the Pew Forum and with the organizations sponsoring today\u2019s event. It\u2019s a wonderful turnout. We are delighted and delighted not simply by the numbers but by who is here. It\u2019s only in this city where you\u2019re 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\u2019t single him out lest he be embarrassed.<\/p>\n\n 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.<\/p>\n\n 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\u2019 names on it, we know we\u2019re 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<\/a><\/span>. He served as lead counsel for the organization in two cases that have tested the scope of Hein<\/em>: Americans United v. Prison Fellowship Ministries<\/a><\/span><\/em> (2006), which was in the 8th<\/sup> Circuit, and Pedreira v. Kentucky Baptist Homes<\/a><\/span><\/em> (2008) in the 6th<\/sup> Circuit.<\/p>\n\n Speaking third will be Walter Weber, who is the senior litigation counsel for the American Center for Law and Justice<\/a><\/span> 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<\/em>, which I commend to your reading if you haven\u2019t seen that.<\/p>\n\n So we\u2019ll start with Chip and move onto Alex and then Walter.<\/p>\n\n IRA \u201cCHIP\u201d LUPU:<\/strong>\u00a0 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\u2019t me; it was the subject. And he was the best student I\u2019ve ever had and now is the best teacher I ever had.<\/a><\/p>\n\n About 10 days ago, a very able law professor, whom I believe is sitting in this room \u2013 I won\u2019t identify him \u2013 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\u2019m going to say to you, that that comment was \u2013 not the surprise part but what the subject is \u2013 that it\u2019s half-true, that is, the focus here is about the case of Hein v. Freedom From Religion Foundation<\/em>, and the particular focus of the case has to do with taxpayer standing in Establishment Clause cases.<\/p>\n\n 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 <\/em>is central involves much larger themes about the government\u2019s 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 <\/em>and its consequences are about the relationship between the First Amendment\u2019s prohibition on laws respecting an establishment of religion and the Constitution Article III conception of the appropriate conditions for exercising judicial power.<\/p>\n\n 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\u2019s 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.<\/p>\n\n When we say there\u2019s 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\u2019d say, listen, it implicates that person\u2019s rights, who\u2019s 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.<\/p>\n\n The Establishment Clause duties of the government and the corresponding protections that it gives the citizens are really quite different from that. They\u2019re held collectively. It\u2019s 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.<\/p>\n\n 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\u2019s 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?<\/p>\n\n 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.<\/p>\n\n 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\u2019t challenge the burning at the stake punishment because I might be upset or offended by it. It doesn\u2019t hurt me; it\u2019s going to hurt somebody else. The person who is subject to the burning at the stake order can challenge it; I can\u2019t challenge it. It doesn\u2019t hurt me.<\/p>\n\n 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\u2019s been a conventional idea that when the government spends money in support of religion, taxpayers can complain about that.<\/p>\n\n 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\u2019m upset about that burning at the stake for some people, I can\u2019t go to the federal courts and say, I\u2019m 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.<\/p>\n\n Back in 1923 \u2013 I\u2019m going to walk you though a few cases that take us up to the Hein <\/em>decision \u2013 Frothingham v. Mellon<\/a><\/span><\/em> (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\u2019re injured and you can challenge that. But if you want to challenge expenditures because you say they\u2019re unlawful, in Frothingham v. Mellon<\/em>, 1923, the Supreme Court says taxpayers do not have standing to challenge the illegality of expenditures.<\/p>\n\n 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<\/a><\/span><\/em> (1968), and that\u2019s a major breakthrough case. That\u2019s why we\u2019re here today.<\/p>\n\n Without Flast v. Cohen<\/em> 40 years ago, we wouldn\u2019t be having this conversation today about Hein<\/em>, 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\u2019t have authority to hear taxpayer challenges until Flast v. Cohen<\/em>.<\/p>\n\n In Flast v. Cohen<\/em>, 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\u2019ll let taxpayers bring Establishment Clause challenges when Congress specifically authorizes money being spent for religious organizations \u2013 in that case it was schools, private schools including religious schools \u2013 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\u2019s not hurting anyone; it\u2019s helping whoever are the beneficiaries of the expenditure.<\/p>\n\n Now, in 1982, there\u2019s the beginning of a cutback from Flast v. Cohen<\/em>. This is Valley Forge Christian College v. Americans United<\/a><\/span><\/em> (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\u2019t spending money. That was transferring land and buildings, real estate. Now, to most citizens, they\u2019d say, why should it matter if it\u2019s 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\u2019t implicate Congress\u2019 Article I power to spend, and taxpayers couldn\u2019t challenge it.<\/p>\n\n Things stayed rather stable in light of Flast v. Cohen<\/em> and the Valley Forge case for the next 25 years until the Hein <\/em>decision. Hein <\/em>started out as Freedom From Religion Foundation v. Hein<\/em>, 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\u2019d 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.<\/a><\/p>\n\n 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<\/em> \u2013 a standing question \u2013 is was the case like Flast<\/em> 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<\/em>? Or was the case like Valley Forge Christian College<\/em> because it was the executive branch acting on its own agenda to promote the conference? Narrowly, that\u2019s the way the question got framed.<\/p>\n\n The district court said, this is like Valley Forge Christian College<\/em>. This is executive branch activity, not congressional activity \u2013 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\u2019t matter whether Congress said, yeah, have the conferences or it just said, here\u2019s money; run the White House. Either way, it was taxpayers\u2019 money; taxpayers can pursue it.<\/p>\n\n 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 \u2013 and you\u2019ve seen this in other cases \u2013 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 \u2013 Alito, Roberts and Kennedy \u2013 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.<\/p>\n\n So it\u2019s 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\u2019t done it. This is executive branch activity not congressional focus on religion, and taxpayers don\u2019t have standing.<\/p>\n\n Justices Scalia and Thomas took a more aggressive and ambitious view. They said Flast v. Cohen<\/em> is wrong. Taxpayers should never have standing, not in this case when it is the executive branch and not in a case like Flast<\/em>, where Congress has explicitly said spend money for religious entities or religious causes. Overrule Flast<\/em>; taxpayers should never have standing.<\/p>\n\n And the four dissenters \u2013 Souter, Ginsburg, Stevens, Breyer \u2013 said, this distinction \u2013 Scalia and Thomas are right that it shouldn\u2019t matter whether it\u2019s the executive branch or the legislative branch. But they\u2019re wrong about whether taxpayers should have standing. The dissenters said taxpayers should always have standing, whether it\u2019s legislative or executive activity.<\/p>\n\n So we\u2019ve 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\u2019s a simple, straightforward rule \u2013 at least simple to state \u2013 that when there is no majority opinion behind a Supreme Court result, we don\u2019t count heads. We don\u2019t 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\u2019t be the dissent. They didn\u2019t support the result. It can\u2019t be Scalia and Thomas because that\u2019s not the narrowest opinion. They said overrule Flast v. Cohen<\/em>; taxpayers should never have standing.<\/p>\n\n So, leaving Justice Kennedy aside \u2013 and the lower courts have treated it this way, at least so far \u2013 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\u2019t and this is executive branch activity to foster or promote religious entities or religious causes, then that\u2019s not attributable to Congress and taxpayers do not have standing.<\/p>\n\n 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 \u2013 you\u2019re going to hear more about that from others \u2013 with that idea. But there are three big questions, it seems to me, that are sitting there in the wake of the court\u2019s opinions in Hein v. Freedom From Religion Foundation<\/em>. These are not academic questions. Academics worry about them. But these are questions that the lower courts have been actively engaged with.<\/p>\n\n #1 \u2013 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\u2019t explicitly say so? Just how explicit does the authority have to be \u2013 question #1.<\/p>\n\n Question #2 \u2013 about which the Supreme Court said nothing in Hein <\/em>\u2013 does Hein <\/em>apply with the same force to state and local government as it does to the federal government? The background of Flast v. Cohen<\/em> and Valley Forge<\/em> 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?<\/p>\n\n Third, will other standing-friendly doctrines start to melt away in the wake of Hein v. Freedom From Religion Foundation<\/em>. 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\u2019s 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\u2019s the injury.<\/p>\n\n You know the lawyers in the room \u2013 and I\u2019ll bet even the non-lawyers in the room now \u2013 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 \u2013 Supreme Court and lower court. And even though Hein <\/em>wasn\u2019t 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\u2019s going to move from taxpayers into observers as well.<\/p>\n\n ALEX LUCHENITSER:<\/strong>\u00a0 It\u2019s 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 <\/em>decision, I found that Justice Scalia hit the nail right on the head when he wrote that the plurality creates \u201cutterly 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.\u201d<\/p>\n\n As Justice Scalia explained, there is no logical theoretical underpinning for the distinction that Hein <\/em>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<\/em>, how can the case be explained?<\/p>\n\n 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.<\/p>\n\n While Justice Kennedy is more protective of church-state separation, at least in some areas, from his concurrence in Hein<\/em>, 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 <\/em>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.<\/p>\n\n 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<\/a><\/span><\/em>(2007), which was decided just three days after Hein<\/em>, 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.<\/p>\n\n In Massachusetts v. EPA<\/a><\/span><\/em> (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\u2019s 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\u2019s 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?<\/a><\/p>\n\n So if Hein<\/em> 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 \u201cin the four decades since Flast<\/em> was decided, we have never extended its narrow exception to a purely discretionary executive branch expenditure.\u201d<\/p>\n\n The court also says, \u201cWe need go no further to decide this case.\u201d And the court says, \u201cWe decide only the case at hand.\u201d So the correct way to read Hein<\/em> 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<\/em>, 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.<\/p>\n\n 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.<\/p>\n\n The concurrence by Justice Kennedy in Hein<\/em>, 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<\/em> was correctly decided, and he reaffirmed that the Establishment Clause expresses the Constitution\u2019s special concern that freedom of conscience not be compromised by government taxing and spending in support of religion.<\/p>\n\n As I\u2019ve mentioned, the rest of Justice Kennedy\u2019s concurrence explains that allowing standing in Hein <\/em>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.<\/p>\n\n Justice Kennedy\u2019s 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 <\/em>that there be a sufficient link between challenged expenditures and congressional action.<\/p>\n\n In addition, given Justice Kennedy\u2019s focus on the separation of powers, a point that the plurality opinion of Alito also emphasized, Hein <\/em>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 <\/em>also should not be applicable to local taxpayers.<\/p>\n\n 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<\/em>, 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 \u2013 and lower courts have repeatedly held \u2013 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.<\/a><\/p>\n\n Now, not surprisingly, given the fractured nature of the Supreme Court in Hein <\/em>and the lack of a specific bright-line rule set out in the case, the impact of Hein <\/em>in the lower courts has been mixed. In Americans United v. Prison Fellowship Ministries<\/em>, the 8th Circuit held that taxpayers had standing to challenge a state\u2019s 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\u2019s point that the executive branch had discretion in selecting the specific provider for the program.<\/p>\n\n In ACLU v. Blanco<\/em>, in holding that Louisiana state taxpayers had standing to challenge two statutory earmarks to churches, a federal district court suggested that it viewed Hein <\/em>as inapplicable to state taxpayers. And, in Bats v. Cobb County<\/em>, a Georgia federal district court held that county taxpayers had standing to challenge a county commission\u2019s procedure for selecting clergy who gave opening prayers at the beginning of the commission\u2019s meetings. The court concluded that Hein <\/em>does not apply to local taxpayers.<\/p>\n\n On the other hand, in Hinrichs v. Speaker of the Indiana House of Representatives<\/a><\/span><\/em>(2007), the 7th Circuit relied on Hein<\/em> 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<\/em> did apply to state taxpayers.<\/p>\n\n Finally, in Pedreira v. Kentucky Baptist Homes for Children<\/em>, a Kentucky federal district court read Hein <\/em>extremely broadly \u2013 in our opinion, very wrongly \u2013 in concluding that state and federal taxpayers had no standing to challenge a state\u2019s funding of a religious provider of residential child care. The court held this even though Kentucky statutes expressly authorize Kentucky\u2019s 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.<\/p>\n\n I am one of the counsel for the taxpayer plaintiffs in Pedreira<\/em>, and we are appealing to the 6th<\/sup> 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.<\/p>\n\n Now let me turn things over to Walter Weber of the American Center for Law and Justice. I\u2019m sure Walter will have some different opinions on the things I just said.<\/p>\n\n (Laughter.)<\/p>\n\n WALTER WEBER:<\/strong>\u00a0 Thank you, Alex, and thank you, again, to the sponsors for this presentation. I\u2019m 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 \u2013 at least in federal court \u2013 if you are someone who is injured.<\/p>\n\n Now, we have been focusing on the taxpayer standing in the Establishment Clause context. I think it\u2019s important to recognize that Flast<\/em> 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\u2019re not allowed to challenge? Is federalism not an important \u2013 or comparably important \u2013 structural provision in the Constitution, just for example?<\/p>\n\n Now, in Flast<\/em>, the exception itself was also pretty narrow. It only applies to Establishment Clause claims \u2013 I\u2019ll mention that. It only applies to claims challenging congressional action; Hein<\/em> 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<\/em> didn\u2019t apply.<\/a><\/p>\n\n 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 <\/em>is, Flast<\/em> is an exception to the rule that applies in every other context and we\u2019re going to read that exception narrowly. We\u2019re going to construe it against the taxpayer claims and basically limit it to its facts. That\u2019s the position that Justice Powell took in a case after Flast<\/em> when he said, I really have my doubts about whether Flast<\/em> was right, but it\u2019s been decided. Let\u2019s just stick to it and keep it to its facts and not expand it. Justice Harlan in dissent in Flast<\/em> had said that he thought it was totally incoherent as a logical matter and would have voted the opposite way.<\/p>\n\n Kennedy has taken up with the Powell position and said, I think we should stick with Flast<\/em>, but let\u2019s not expand it. Now, we filed an amicus brief in Hein <\/em>asking the court to overrule Flast<\/em>. Obviously, they didn\u2019t do that. There\u2019s 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<\/em> alone in authorizing federal taxpayer lawsuits against alleged federal misdeeds, but every single argument that the Flast<\/em> 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<\/em> had erred in at least part of its rationale in ignoring the separation of powers concerns.<\/p>\n\n That refrain actually was picked up in the Alito opinion, where they quoted that opinion, saying that Flast<\/em> had erred. So we said, Flast<\/em> is now like Wile E. Coyote in the old Road Runner cartoons. He\u2019s standing in midair, the ledge is gone from underneath him, and all it takes is for someone to look and say, whoops, there\u2019s nothing there and \u2013 crash! All right? (Laughter.) But, for whatever reason, whether it\u2019s policy or principle, the court has decided that we\u2019re going to leave Wile E. hanging there in the air right now, but we\u2019re 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<\/em>, which was to construe it narrowly and limit it to its facts.<\/p>\n\n Now, what\u2019s next? Well, I think Chip put his finger on a very important issue. When you look through the Hein <\/em>opinion, there\u2019s a word \u201cspecificity\u201d that appears in either that form or in variant forms again and again and again, at least \u2013 in the slip opinion \u2013 at least nine different pages and in Justice Kennedy\u2019s opinion. Specificity what? Congress has to specifically authorize the expenditure that\u2019s being challenged for it to fall within Flast<\/em>.<\/p>\n\n Now, the question that arises then: How specific is specific? Okay, there\u2019s a lawyer\u2019s dream, right? We have some points on the graph that tell us. Flast<\/em> says that a grant for money to private schools \u2013 where everyone knows that private schools includes religious schools \u2013 is specific enough. Bowen v. Kendrick<\/a><\/span><\/em>, where a grant was to recipients to teach various family life issues and it included religious recipients, was specific enough.<\/p>\n\n Hein <\/em>says that a budget for a federal executive agency, period, is not. Hein <\/em>also says \u2013 and I guess it\u2019s technically indicative, but it\u2019s indicative of the controlling opinion, in Footnote 7 that \u201cit 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.\u201d<\/p>\n\n So what that stands for is the proposition that House reports, floor statements, informal opinions, maybe media coverage, where everyone kind of knows what\u2019s going on, is not enough. It has to be something in the legislation that points you to the challenged expenditure. I\u2019m sure there\u2019s going to be litigation over that because that leaves a lot of wiggle room for where the margins are going to be.<\/p>\n\n 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\u2019re 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 \u2013 and I think it\u2019s the correct view \u2013 would also apply to state taxpayer suits.<\/p>\n\n [inaudible]<\/p>\n\n\n Now, my reading is the Supreme Court has never officially endorsed that view. And I don\u2019t think that it makes sense because it\u2019s 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\u2019t even know if they\u2019ve gone that far, but does this mean that the court might cut back on that area of standing because, in general, they\u2019re being more demanding about standing requirements? It\u2019s possible. I guess we\u2019ll find that out if they ever take a case that turns on offended-observer standing.<\/p>\n\n One last thing I want to say, and I\u2019m trying to keep this short, is a couple of words in defense of reading Flast<\/em> narrowly, if not overruling it. The court spends a lot of time talking about separation of power so I\u2019m 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.<\/p>\n\n 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 \u2013 not just Establishment Clause \u2013 that apply to the way government operates in a way that the people who are benefited won\u2019t necessarily have an incentive to complain. Obvious example: spending programs, right? Who\u2019s 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.<\/p>\n\n If you\u2019re someone who is of the opinion that that\u2019s an abuse of the federal power, who can sue? The people who are being helped, the people who are getting the money, they\u2019re 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\u2019s a matter for the states. Maternal and child care is a good thing, but it\u2019s not something the federal government should be doing, she said. And the Supreme Court said, sorry, you\u2019re a taxpayer; that doesn\u2019t give you standing.<\/p>\n\n Theoretically, there are other areas where the same thing could happen \u2013 violations of the Commerce Clause. Unless it\u2019s a law that\u2019s being passed that restricts you, in which case, you can challenge \u2013 if it\u2019s a law that does something beneficial or positive, you can\u2019t challenge it. What about things that would legalize acts that you might find offensive? Well, you don\u2019t have to do it. You\u2019re 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\u2019re out of luck; you\u2019re not going to get standing.<\/p>\n\n So the fairness argument, I would submit, suggests that Flast<\/em> is really a special privilege for Establishment Clause plaintiffs. And why should they have that special privilege? I\u2019m 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.<\/p>\n\n And with that, I think I\u2019m going to pass it back to Bob.<\/p>\n\n TUTTLE:<\/strong>\u00a0 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\u2019t 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\u2019t be to terminate the program.<\/p>\n\n So if you and I are both applicants for a grant to operate a homeless shelter, you get it and I don\u2019t and I say, well, wait a minute, he shouldn\u2019t be able to get it because he\u2019s a religious organization. I\u2019m not so sure or \u2013 that they favored my religion over his, or his religion over mine. I\u2019m not sure that I\u2019ll be able to get a remedy that holds the statute as a whole, the grant as a whole, unconstitutional. So I\u2019m not sure about that.<\/p>\n\n So first the question of, should it matter whether there\u2019s 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?<\/p>\n\n LUCHENITSER:<\/strong>\u00a0 I\u2019ll 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.<\/p>\n\n 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\u2019s a very bad principle that \u2013 the fact that no one can sue does not mean that there should be standing.<\/p>\n\n TUTTLE:<\/strong>\u00a0 Walter?<\/p>\n\n WEBER:<\/strong>\u00a0 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\u2019s 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\u2019s going to be a political consequence and they\u2019re going to get voted out.<\/p>\n\n 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\u2019t think so. It\u2019s kind of like you\u2019re disciplining your kids, right? You want them to do what you\u2019re going to say even if they know they can get away with it. And it\u2019s the same thing with the federal government or any government official. You want them to do what\u2019s right because it\u2019s what the rules are, not just because someone\u2019s going to be able to sue them over it.<\/a><\/p>\n\n
\n\nEvent Transcript<\/h2>\n\n
![\"David](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/masci.jpg\" "\\"David")
<\/figure>\n\n![\"Robert](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/tuttle1.jpg\" "\\"Robert")
<\/figure>\n\n![\"Ira](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/lupu1.jpg\" "\\"Ira")
<\/figure>\n\n![\"Ira](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/lupu2.jpg\" "\\"Ira")
<\/figure>\n\n![\"Alex](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/luch1.jpg\" "\\"Alex")
<\/figure>\n\n![\"Alex](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/luch2.jpg\" "\\"Alex")
<\/figure>\n\n![\"Walter](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/weber1.jpg\" "\\"Walter")
<\/figure>\n\n![\"Walter](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/weber2.jpg\" "\\"Walter")
<\/figure>\n\n![\"Robert](\"https:\/\/assets.pewresearch.org\/wp-content\/uploads\/sites\/11\/2012\/07\/tuttle21.jpg\" "\\"Robert")
<\/figure>\n\n