The U.S. Supreme Court granted review of this case to decide whether federal taxpayers had standing to bring an Establishment Clause challenge to conferences held as part of President George W. Bush’s “Faith-Based and Community Initiatives” program. Under the program, the Office of Faith-Based and Community Initiatives (and similar centers established at other federal departments) held conferences to assist religious organizations in applying for and receiving federal grants. The conferences, like the faith-based offices, were funded through general grants by Congress to the executive branch for general administrative expenses, rather than through specific appropriations for the conferences themselves.
Freedom From Religion Foundation sued, charging that the conferences were designed to promote religious community organizations over secular ones. The district court dismissed the case, holding that the plaintiffs lacked standing—meaning that they could not bring the lawsuit—because the challenged program was not funded by money earmarked by Congress for that purpose. But the Seventh Circuit vacated that decision, concluding that “[t]he line proposed by the government (no standing to challenge the conferences, standing to challenge the grants) would be artificial because there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause . . . without making outright grants to religious organizations.”
The Supreme Court granted certiorari in December 2006. We submitted an amicus brief in support of the plaintiffs in early February 2007, arguing that taxpayers suffer a direct and concrete injury when congressionally appropriated funds are put to religious use and that this principle has been easily and consistently applied by the lower courts.
The Supreme Court heard oral argument on February 28, and issued a fractured decision on June 25 reversing the Seventh Circuit’s decision.
Justice Alito wrote a plurality opinion (joined by Chief Justice Roberts and Justice Kennedy). That opinion took the position that there is no taxpayer standing to challenge expenditures by the executive branch out of purely discretionary funds that the executive can use for any purpose whatsoever (even though the money originates with Congress) because federal taxpayer standing in Establishment Clause cases requires a nexus between the challenged expenditure and the exercise of Congress’s taxing-and-spending power.
Justice Kennedy also wrote a concurrence in which he emphasized that the case originally recognizing taxpayer standing for Establishment Clause plaintiffs—Flast v. Cohen—was correctly decided and remains good law, and explained the Hein ruling in terms of respect for separation of powers and the need to ensure that the courts do not get into the business of policing the day-to-day speech and operations of the executive branch.
Justices Scalia and Thomas concurred in the judgment, taking the position that Flast should be overruled and that there should never be taxpayer standing in Establishment Clause cases for any reason.
Justices Stevens, Souter, Ginsburg, and Breyer dissented, expressing the view that there should be taxpayer standing to bring Establishment Clause challenges to any governmental expenditure whether Congress authorized it.
Because of the splintered decision, it is not clear whether the lower courts will treat as controlling the plurality’s opinion or Justice Kennedy’s narrower focus on avoiding intrusive judicial oversight of executive branch speech and internal operations. What is clear is that taxpayer standing has not been abolished, but that it has been narrowed to exclude some discretionary expenditures made by the executive branch.