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Last Wednesday, the Roberts Court heard argument in Hein v. Freedom From Religion Foundation. In Hein, taxpayers who politically oppose President George W. Bush’s sponsorship of conferences to promote the inclusion of faith-based social service providers in government programs sued to stop him. Why do taxpayers get to make a federal case out of their political opposition? Good question, and the answer is a Warren Court mistake. It’s a mistake that tied both sides in the Heinoral argument in knots and left the Court perplexed. After Solicitor General Paul Clement struggled gamely for some minutes trying to apply the Warren Court’s handiwork, Justice Samuel Alito Jr. thoughtfully asked, “Are you arguing that these lines that you’re drawing make a lot of sense . . . or are you just arguing that this is the best that can be done . . . within the body of precedent that the Court has handed down in this area?” When Clement said, “The latter,” the Court breathed a sigh of relief, and Justice John Paul Stevens wondered out loud whether his fellow justices thought they had “a duty to follow precedents that don’t make any sense.” In federal court, standing is acquired by being sufficiently injured to have a right to sue. The general rule is no taxpayer standing. Taxpayers make their case in the legislature, not court. The standing requirement is important because otherwise, courts would merely become a second legislature, where those unhappy with legislative policy choices could take another, unauthorized crack at them. Nevertheless, in a closely divided ruling, the U.S. Court of Appeals for the 7th Circuit found in Heinthat some taxpayers do have standing to challenge the president’s support for faith-based initiatives, extending a mistaken precedent from the Warren Court that would be better overruled. In Flast v. Cohen (1968), the Warren Court disregarded settled principles of constitutional litigation and sauntered off in its own direction. Flastheld that taxpayers had standing to challenge the use of funds under the , which provided assistance to public and religious schools alike in mathematics, reading, and other subjects. The inclusion of religious schools was claimed to be an unconstitutional establishment of religion. It is not deemed so now, as modern precedent more or less says, but Chief Justice Earl Warren thought differently, so he bent the rules to allow the taxpayers into court. This was a mistake. The standing requirement both ensures that the litigants have a sufficient stake to undertake proper argumentation and keeps courts from disregarding the separation of powers. In Flast, Warren invented a two-part standard that satisfied neither of those considerations. First, taxpayers had to establish a logical link between that status and a spending measure. Second, taxpayers had to establish a nexus between that status and the precise nature of the constitutional infringement alleged. This meant nothing. As Justice John Marshall Harlan II in dissent thoughtfully pointed out, neither of the Flastfactors did anything to differentiate an establishment-clause taxpayer case from any other taxpayer case. The requirements were at best makeweights, both could be easily fulfilled, and both were off point in terms of keeping courts focused on resolving specific disputes. It was not as if the taxpayer would get a refund if he prevailed, Harlan pointed out. “The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation,” he remarked. Moreover, Harlan noted, there is no good reason to think that the establishment clause creates any more limits on the spending power than do other constitutional provisions, such as due process or equal protection — rights for which no taxpayer standing exists. CORRECTING FLAST? Will the Roberts Court undo the Flastmistake? Possibly. The case could be resolved narrowly simply by referencing modern precedent that differentiates legislative from general executive expenditure. But, as Chief Justice John Roberts Jr. remarked, that would be little more than formalism. Efforts at oral argument by Andrew Pincus for the Freedom From Religion Foundation to add even more bells and whistles, such as a “nonincidental” use of appropriated funds for a core religious purpose, led to discussions of how many bagels could be purchased for a prayer breakfast or how many Secret Service personnel could attend the president at a religious-organization-sponsored event. The unsatisfactory responses prompted Justice Anthony Kennedy to worry that such micromanagement would be profoundly intrusive on White House operations — the very harm to the separation of powers that first worried Harlan. While Roberts prefers narrow rulings that build consensus, he also rightly favors clarity. The anomalous establishment-clause taxpayer-standing exception is incapable of yielding that. Justices David Souter and Stephen Breyer seem its strongest defenders, loosely referencing James Madison’s famous Memorial and Remonstrance and positing that people who are “upset” need a cause of action. With respect, this is misciting Madison, who challenged the coercive taking of even “three pence” not for the inclusion of faith groups in a general program, but for the compelled support of an established church and coerced “conformity” thereto. Big difference. There is little question but that the Warren Court’s establishment-clause standing doctrine has drawn the Supreme Court into disputes over the evenhanded inclusion of religious schools in federal grant programs. It also has enmeshed the judiciary in all manner of challenges to religious holiday displays and the after-hours use of classrooms by student religious clubs. To the extent that citizens disagree about these matters, the political process should resolve them. Moreover, religious divisiveness is heightened, not lessened, by empowering one side to run into court brandishing an exclusionary interpretation of the establishment clause. OTHER OPTIONS Rejecting Flastdoes not mean that proper establishment-clause cases could not be heard. Obviously, where any citizen is coerced or disadvantaged by a prescribed imposition of a religious belief or practice, standing would exist. Similarly, as Justice Harlan pointed out, standing is appropriate for a challenge of a tax specifically designed to support religion. This again was the Virginia assessment opposed by Madison. The Roberts Court has shown a special interest both in standing and in maintaining the jurisdictional integrity of the judicial function, as shown by its decision in DaimlerChrysler v. Cuno (2006), unanimously refusing to extend Flastto allow a taxpayer challenge to state investment-tax credits that allegedly discriminated against interstate commerce. It should not abandon that special interest here. It is illogical to retain a standing exception that distorts the role of the courts, props up a historically inaccurate interpretation of the establishment clause, and is largely atmospheric filler insufficiently connected to the structural separation of powers. And lest it be forgotten, the standing exception also undermines one of President Bush’s best ideas — letting religious charities and other faith-based organizations compete on equal terms to deliver social services. Often, a religiously affiliated program is more effective than secular alternatives. There is no constitutional reason to keep people in need of such services from coming freely to faith-based organizations. The door opened to spurious, exceptional taxpayer standing in Flastought to be closed.
Douglas W. Kmiec is professor of constitutional law at Pepperdine University in Malibu, Calif. He is former legal counsel to Presidents Ronald Reagan and George H.W. Bush.

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