By a vote of 5 to 4, the court ruled that taxpayers could not sue to block federal expenditures that they allege violate the constitutional separation of church and state.
For 39 years, the court has recognized an exception to a general rule that taxpayers do not have standing to sue to stop government expenditures with which they disagree. That exception, created in the 1968 case of Flast v. Cohen, allowed taxpayers to challenge spending on programs that they believed promoted religion. But yesterday’s decision said that precedent did not apply in this case.
The five-member majority was split between those justices who would have overruled the precedent entirely and those who, interpreting it narrowly, held that it did not apply to the lawsuit at issue. While there was no opinion for the court, the narrower basis for disposing of the case prevailed in an opinion by Justice Samuel A. Alito Jr. that was joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy.
These three said that, properly interpreted, the Flast v. Cohen precedent permits taxpayer challenges to religion programs explicitly set up and specifically financed by Congress. Since the Bush administration created the White House Office of Faith-Based and Community Initiatives by executive order and is paying for it out of general appropriations, the precedent does not apply, the three justices said.
The other two in the majority, Justices Antonin Scalia and Clarence Thomas, objected that “there is no intellectual justification for this limitation.” Declaring that “if this court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides,” Justice Scalia made clear which side he was on, in an opinion that Justice Thomas signed. Flast v. Cohen was “an inkblot on our jurisprudence,” they said.
The dissenters also objected, from the other direction, to the distinction that the Alito opinion drew. “If the executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away,” Justice David H. Souter wrote in a dissenting opinion that was also signed by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.
The case began as a lawsuit brought against the administration in 2004 by a secular advocacy group, the Freedom From Religion Foundation, to challenge the constitutionality of conferences that the White House Office of Faith-Based and Community Initiatives has been running to instruct religious organizations on how to apply for federal grants.
Annie Laurie Gaylor, co-president of the foundation, said in an interview on Monday that her organization, based in Madison, Wis., was relieved that the court had not used the case as an occasion to overturn Flast v. Cohen. She said that many of the foundation’s other cases were either challenges to state programs in state court, or challenges to federal programs established by Congressional action. Neither category of lawsuits will be affected by the ruling, Hein v. Freedom From Religion Foundation, No. 06-157.
Justice Alito’s opinion, while concluding that “we leave Flast as we found it,” was implicitly quite critical of the precedent. “It is significant that, in the four decades since its creation, the Flast exception has largely been confined to its facts,” he said. That is a description of a decision that has become a dead end in the law, a description that often precedes a decision to revisit and overrule such a precedent.
But it was apparent from a brief concurring opinion by Justice Kennedy that the day of reckoning has not yet arrived for Flast v. Cohen. Justice Kennedy described the Establishment Clause in the First Amendment as conveying “the Constitution’s special concern that freedom of conscience not be compromised by government taxing and spending in support of religion.” He added, “In my view the result reached in Flast is correct and should not be called into question.”
However, Justice Kennedy said, he agreed that the precedent should be limited as Justice Alito’s opinion proposed. Otherwise, he said, “courts would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold.”