No Standing for It
Marc D. Stern
An obscure Supreme Court case decided late last spring, Arizona Christian
School Tuition Scholarship Organization v. Winn (ACSTO), threatens to
close the federal courts to a wide range of significant complaints that
government is unconstitutionally supporting or furthering religion.
The case involved a tax credit scheme to
encourage private donations to organizations funding scholarships for
children to attend private and religious schools. The Court found that
plaintiffs could not bring the suit as taxpayers because the government did
not actually spend its own money; it merely refused to tax certain income
shielded by the credit.
The exact holding of the case may be limited
to tax credits, but its broad rhetoric deprecates the importance of federal
court enforcement of the separation of church and state. Lower courts have
taken the hint.
The Freedom From Religion Foundation (FFRF)
brought suit last year in a federal district court in Milwaukee to challenge
the annual National Day of Prayer which Congress has long obligated the
President to proclaim. The organization asserted that the statute amounted
to an official repudiation of atheism, marking atheists as second class
citizens. It prevailed on the merits in the District Court. It lost in the
U.S. Court of Appeals for the Seventh Circuit, but not on the merits.
The appeals court, citing ACSTO, held that
FFRF lacked “standing”—that is, it did not have a right to advance this
particular legal claim—because it had not suffered an injury recognized as
such by the Constitution. The court nominally left the constitutional
question about the day of prayer unanswered. Citing that decision, a
district court in Texas in turn dismissed for want of standing an even more
substantial challenge by atheists to Texas Governor Rick Perry’s blatantly
unconstitutional Christian Day of Prayer.
Standing is not always an obstacle to
litigating Establishment Clause issues. A Texas pastor has challenged a
supposed decision by the Veteran’s Administration to prohibit sectarian
prayers in a national cemetery. (The government denied having such a
prohibition, and the matter has since settled.)
The pastor claimed in his lawsuit that he was
told the restriction was required by the Establishment Clause. He plainly
had standing to litigate the correctness of that view—because he himself was
prevented from doing something. But if the policy had been to allow
sectarian prayers, it’s not clear that an atheist attending events at the
cemetery would have standing to bring a challenge raising exactly the same
legal question, but from the perspective of someone who is not being
prevented from doing anything.
“For every right there is a remedy” is a
legal maxim dating at least to the great 18th-century English jurist William
Blackstone. The U.S. Supreme Court, however, has for some time proceeded on
a very different assumption, driving an increasingly broad wedge between
violation and judicial relief. Invoking the doctrine of standing to deny
persons complaining of alleged constitutional violations a day in court is
an increasingly common judicial technique.
The Supreme Court insists that it is
motivated solely by a desire to insure against federal judicial
self-aggrandizement and preserve the independence of political branches. But
the Court’s increasingly high standards for standing in church-state cases
may equally well be seen as a way of silently permitting establishments of
religion where no one is hurt in a tangible way, while leaving the
courthouse doors open to challenges to church-state separation (where the
person denied access or a subsidy suffers a tangible harm). Absent standing,
there is no “case” to decide. By constitutional command, courts may only
decide “cases and controversies.”
Most of the Supreme Court litigation about
Establishment Clause standing has come in funding challenges. Looming on the
horizon, though, are confrontations about standing to challenge symbolic
endorsements of prayer, religious holidays, and religious symbols, such as
the Ten Commandments or public days of prayer.
To understand how we got to where we are, a
bit of history is essential.
Discussion best begins with Flast v. Cohen
(1968), a lawsuit brought to challenge the 1965 federal education law that
provided for aid to both public and religious schools. The suit was met with
the objection that the Supreme Court in a 1923 decision (Mellon v.
Frothingham) denied taxpayers standing to assert claims that Congress
was making expenditures of money beyond the scope of its constitutional
The Flast majority allowed the
challenge to funding religious schools to proceed where measurable
expenditures are made to benefit religion. If the expenditures would have
been made anyway (e.g., the portion of a teacher’s salary attributable to
leading a class in prayer), Flast standing will not exist. Flast
first found that the constitutional limit on the power of the federal courts
to decide “cases or controversies” was no obstacle to taxpayer suits. It
then determined that, as a matter of “prudence” it would allow taxpayer
suits to proceed where two essential criteria were met:
(1) the act challenged is related to the
taxpayer’s status as a taxpayer, e.g. that Congress acted under its power to
tax and spend for the general welfare, not some other constitutional power;
(2) the taxpayer be alleging a violation of a
clause of the Constitution that imposes “specific…limitations upon the
exercise of the congressional taxing and spending power.”
Generations of law students—to say nothing of
lawyers—have struggled to understand Flast. No case has identified a
constitutional provision that satisfies Flast other than the
Next came Valley Forge Christian College
v. Americans United (1982), a challenge by a well-known church-state
separation group (Americans United for the Separation of Church and State)
to a gratuitous transfer of surplus government property to a Bible college.
The government proposed to give the property to the college under a statute
enacted under a constitutional provision allowing government to dispose of
Americans United asserted both taxpayer and
citizen standing, alleging that the transfer was an unconstitutional subsidy
of religion. The Supreme Court rejected both submissions.
The taxpayer claim failed because the
decision to deed the property to the College was an administrative one, not
a congressional one, and because Congress had acted not under its taxing
power but under its power to dispose of surplus property under Article IV.
Hence Flast, a case about Article I taxing powers, did not control.
Why should these distinctions make the case less fit for adjudication? The
Court did not say.
With respect to citizen standing, the
majority quickly rejected the idea that standing rules should be loosened in
Establishment Clause cases, lest the provision be under-enforced:
Implicit in the [argument] is the philosophy
that the business of the federal courts is correcting constitutional errors,
and that “cases and controversies” are at best merely convenient vehicles
for doing so and at worst nuisances that may be dispensed with when they
become obstacles….This philosophy has no place in our constitutional scheme.
It does not become more palatable when the underlying merits concern the
The Court emphasized that standing did not
exist when the plaintiffs asserted a grievance shared with the citizenry as
a whole. Civil society, it asserted, does not enjoy a “roving commission” to
police constitutional guarantees without regard to the existence of
traditional, individualized, kinds of injury.
Despite technical differences, it is hard to
resist the conclusion that the major distinction between Flast and
Valley Forge was the composition of the Court, with the switch in
results due largely to the substitution of members of the Warren Court by
Nixon and Reagan appointees (except for Justice Blackmun, a Nixon appointee,
who joined the dissenters urging standing).
The Court’s reference to the decision in
Valley Forge being made by an administrative agency, and therefore
outside of Flast, gave rise to a standing challenge in Bowen v.
Kendrick (1995), an Establishment Clause challenge to a precursor of the
faith-based (charitable choice) initiative.
Plaintiff taxpayers had challenged grants
made under a program advocating teenage chastity. The government asserted
that the taxpayers lacked standing because the grants were issued not by
Congress but by an administrative agency. Chief Justice William Rehnquist
(the author of Valley Forge) curtly rejected the claim, noting that
Congress had required the agency to include religious programs. Hence, the
Flast requirements were met.
The next challenge brought by atheist
taxpayers was to a relatively inconsequential feature of President Bush’s
faith-based initiative. In connection with that program, the White House
organized conferences geared to encouraging religious social welfare
programs. In the course of one such conference, high-ranking officials
stated that only religion could solve the nation’s social problems.
Plaintiffs sought an injunction against further such conferences and
The legal theory underlying the suit was that
in the competition between religious and secularist viewpoints, the
government was required to be neutral. The government’s funding of these
conferences, and its official support for the necessity of religion,
indicated that atheists (and atheism) enjoyed an inferior status in
society—arguably, an Establishment Clause violation.
The Supreme Court refused to decide the
constitutional question posed, holding that plaintiffs lacked standing,
Hein v. Freedom From Religion Foundation (2007). A majority of the Court
(in three separate opinions) held that Flast did not permit taxpayer
standing even though the conferences were paid for with tax funds.
Flast, said the Court, applied
to congressional decisions to spend money in support of religion, not
administrative ones. This was the case even when executive branch officials
made decisions about how to spend those appropriations. Bowen (the
teen chastity case) was explained away on the theory that Congress had
specifically ordered the inclusion of religious groups as grantees. The
challenged conferences were paid for with general White House
Again, the Court emphasized that the broad
standing rule it applied to the plaintiffs essentially would aggrandize the
judiciary. The rule proposed by respondents would enlist the federal courts
to superintend, at the behest of any federal taxpayer, the speeches,
statements, and myriad daily activities of the President, his staff, and
other Executive Branch officials.
That, said the Court, would be “quite at odds
with…Flast’s own promise that it would not transform federal courts
into forums for taxpayers’ ‘generalized grievances’” about the conduct of
government, and would “open the Judiciary to an arguable charge of providing
‘government by injunction.’” It would likewise deputize federal courts as
“‘virtually continuing monitors of the wisdom and soundness of Executive
action,’” and that, most emphatically, “is not the role of the judiciary.”
The Hein Court rejected a parade of
horribles proffered by respondents—such as executive decisions to directly
fund religion—as unlikely to occur, subject to congressional oversight, and,
perhaps, challenge by others actually injured.
A plurality of Justices found it unnecessary
to consider the argument advanced by several amicus briefs that
Flast should be overruled. Justice Kennedy, while agreeing with the
result, reaffirmed Flast. Justice Antonin Scalia (joined by Justice
Clarence Thomas) took the opposite point of view.
In an opinion that displays his acidic
writing at its best, Scalia skewered the Court’s decision as continuing a
“shameful tradition” of Flast and its progeny. It was in the
political process, he argued, “that generalized grievances affecting the
public at large have their remedy.”
This brings us to ACTSO, which involved a
challenge to an Arizona tax credit available to corporations for
contributions to not-for-profit organizations providing scholarships for
private school students. The statute allowed such organizations to limit
their assistance to groups providing scholarships to religious schools or
religious schools of a particular denomination.
The claim was that this amounted to a state
subsidy for religious discrimination, a claim that is far from frivolous,
but not necessarily meritorious. (How is this scheme different from a
charitable contribution to a religious school, certainly a tax deductible
gift?) It is exactly the type of claim courts exist to sort out—or so we
But the Supreme Court refused to decide,
saying that plaintiffs lacked standing. Plaintiffs were not attacking the
use of taxes they paid, but the state’s failure to tax all that it might.
Whether the elimination of the credit would lower plaintiffs’ tax rates was
based on sheer speculation of what the government might do. In short, this
was not a Flast case—which involved an actual expenditure of tax
Displaying rhetorical talents to match
Justice Scalia’s, Justice Elena Kagan penned a dissent that questioned the
rationale of a distinction between a cash subsidy and a tax credit, and
noted that the Court’s opinion left a gaping hole in the ability of citizens
and courts to enforce the Establishment Clause.
What lies ahead?
In the past quarter-century, the Supreme
Court has decided almost half a dozen Establishment Clause cases concerning
the display of religious symbols on public property or the rights of
religious speakers to have access to public spaces for speech. The latter
cases were all brought by an excluded speaker and in each, the Court passed
over the standing issue in silence, even though federal courts have a
general obligation to ensure that the parties to a dispute pending before
them have standing.
The lower courts have until now allowed such
challenges to proceed on allegations that a religious symbol displayed on
public property causes plaintiffs to avoid altogether the place where it is
displayed, or take steps to avoid it by taking a different route. Some
courts have allowed such suits on bare testimony that the display caused a
feeling of exclusion. Likewise, courts have generally allowed challenges to
prayers at public events if a plaintiff says that their presence deters
Now a few judges have begun to question these
results, urging that mere exposure to religious speech or display, absent
compulsion, is not an injury for standing purposes but, to use Justice
Scalia’s phrase, mere “psychic injury.” Thus, as noted above, courts have
been reluctant to allow atheists to challenge prayer breakfasts. This
reluctance is of a piece with the Supreme Court’s rhetoric about the courts
not being entitled to police all that government does for constitutional
That argument, however, has a substantive
dimension. The Court has said that the Establishment Clause prohibits
government from categorizing citizens by their religious beliefs or lack
thereof. Atheists have a plausible argument that the holding of a prayer
breakfast or memorializing the war dead with a large public cross relegates
them as non-believers to second-class citizenship.
A refusal to recognize these as injuries for
standing purposes is tantamount to rejecting the atheists’ argument on its
merits. It is unfair because, by contrast, a group that was prevented from
erecting a cross as a war memorial on public land as a violation of the
Establishment Clause would plainly have standing. That one side does not
have standing while the other does in contentious battles over government
involvement with religion will surely signal to litigation-shy government
officials—as well as those bent on advancing religion—that safety lies in
erring in favor of religion.
Reporting for the Los Angeles Times
April 3, David Savage treated the decision as if it were mostly on the
merits of tuition tax credits for private (= religious) schools, and had
broken no new substantive ground. In the Washington Post, Robert
Barnes correctly identified the standing issue as central, but didn’t
venture to characterize its significance.
But the New York Times’ Adam Liptak
allowed as how the ruling “may be quite consequential.” If the Supreme Court
proceeds, as some lower courts have, to apply its new standing rule to cases
involving prayers and symbolic displays, it will be very consequential
In the Supreme Court, the party that lost in the lower court is
2 Flast involved federal
taxpayers, and ACSTO involved state taxpayers. The court treated the
two as presenting
identical problems, although traditionally, state taxpayers have
been subject to more liberal standing rules.