More on Standing and the Establishment Clause

                 Thanks to Rick for getting "first to the post," so to speak, on the Supreme Court's Hein decision today limiting taxpayer standing to challenge the government's conduct of religious programs.  I agree that the limited allowance of taxpayer standing in Flast v. Cohen, reaffirmed but limited today by (what is likely) the controlling three-justice opinion, is a compromise that has conceptual difficulties.  Justice Scalia's concurring opinion, which calls for overruling Flast -- and in which is (no surprise) the most enjoyable opinion to read and discuss -- describes the problem well.  If the injury in question is suffering an extra tax burden from the particular program, the plaintiff can almost never prove that connection and should never have standing; but if the injury is offense at the government's having supported religion, then the plaintiff always has that and should always have standing.  Either way, limited Establishment-Clause standing seems to make no sense.

                However, Justice Scalia's opinion seems to me to duck a couple of important arguments.  First, if there is no taxpayer standing at all for the Establishment Clause, there would be no federal-court enforcement on issues at the heart of even the narrowest understanding of the Establishment Clause: for example, the funding of clergy of only one denomination.  Without taxpayer standing, there would be no plaintiff to challenge such an action, which though unlikely now was a real concern of the framers.  Unlike the case with school prayers or creche, there is no person affected by the action in the sense of having to listen to or view the activities of the funded clergy and who could sue on that basis.  Given the centrality of "no preferential funding of clergy" to the Establishment Clause, can't one plausibly argue, as Flast did, that the Clause implicitly amended previous Article III limits on taxpayer standing?  (It's true that many state courts have broader taxpayer-standing rules, but many don't; plus if Article III standing is absent, the Supreme Court cannot  review the case coming from state court to ensure uniformity of federal law -- unless it happens to be the government petitioning for cert (see ASARCO v. Kadish, 1989).)  At the least, I think, Justice Scalia should have dealt with this argument.

               Second, it has been argued by Carl Esbeck and others -- and I think Rick actually has considerable sympathy with this view -- that the Establishment Clause is not so much an individual-rights provision as a structural provision, meant to keep the state from intruding into the religious sphere (in certain ways, at least) and thus to preserve some kind of separation that (though its scope is a matter of debate) is healthy for both the churches and the civil society.  If that's true, then it may make perfect sense to permit standing for a broader class of individuals not directly or substantially affected by the government's conduct but still acting as sort of private attorneys-general to enforce a proper structural state-church relationship.  (Again, let me emphasize that that's not to say anything about whether the plaintiff should win on the merits of any particular Establishment Clause claim: for example, a plaintiff challenging a school voucher program might have standing but should lose on the merits because it is a permissible program of "true private choice" under the 2002 Zelman decision.)

                Finally, I want to be somewhat careful about embracing the idea that constitutional issues concerning religion -- in this case, Article III bars to taxpayer standing -- should always be treated the same as other constitutional issues.  That reasoning, for example, has led courts too often to dismiss constitutional claims for the freedom of religious organizations and individuals on the ground that the religious interest gets no extra weight, in spite of the presence of the Free Exercise and Establishment clauses.

                I therefore have sympathy for the three-justice opinion that refuses to overrule Flast, but that also restricts it so as to avoid permitting taxpayer standing in every Establishment Clause case.  Scalia is right, though, that the distinction these three justices (Roberts, Alito, Kennedy) adopt doesn't serve the underlying purposes well.  They seem at times to say that executive-branch actions taken under a statute affording discretion to the executive branch cannot be challenged, that only legislation that specifically orders the disbursement of  money can be challenged.  This makes sense in the context of the Hein case, where the executive officials weren't disbursing funds, but were only making speeches and conducting their own programs, and the only connection to a legislative expenditure was that Congress had funded the agencies' general operations.  But if the executive branch gets a free pass altogether, then it could simply give its discretionary funds to Baptist (and no other) clergy, violating the core of the Establishment Clause, with no (or very limited) federal-court policing.

                A distinction that would better reach the core cases while restricting federal-court lawsuits and involvement, it seems to me, would be to limit Flast to cases of government disbursement of funds to private, religious parties.  This would allow challenges to the core cases like (at the extreme) preferential funding of clergy or churches -- whether done by the legislature or by the executive -- while eliminating taxpayer standing as a basis for challenging government's own religious programs or symbols.  In the latter cases, people who actually have to be exposed to the exercise or symbol should be the ones, and the only ones, able to sue.  The Christian Legal Society, following Professor Esbeck's lead, recently advanced this distinction in an amicus brief filed supporting Notre Dame's cert petition in a case challenging federal teacher-training grants to the university (Notre Dame v. Laskowski).

                                                                Tom