Standing Room Only: Federal Taxpayers Denied Standing to Challenge President's Faith-based Programs in Hein v. Freedom from Religion Foundation, Inc - Patricia Mary Quinlan

• Publication year: 2008

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Standing Room Only: Federal Taxpayers Denied Standing to Challenge President's Faith-Based Programs in Hein v. Freedom from Religion Foundation, Inc.

During the 2006-2007 Term, the United States Supreme Court addressed the issue of whether federal taxpayers have standing to challenge the constitutionality of executive expenditures that allegedly violate the First Amendment to the United States Constitution.¹ In Hein v. Freedom from Religion Foundation, Inc.,² the plaintiffs, asserting standing based on their status as federal taxpayers, objected to the use of congressional appropriations to fund a faith-based program created by President George W. Bush as a violation of the Establishment Clause.³ Although no single analysis commanded five votes, a majority of the Court agreed to dismiss the case for lack of standing.⁴ In so holding, the Court interpreted the test for taxpayer standing in a way that treats congressional funds that are distributed pursuant to congressional authority differently than congressional funds that are distributed pursuant to executive authority. This inconsistent treatment of congressional and executive action for standing purposes has both practical implications for practitioners preparing their course of action in First Amendment cases and conceptual implications for those interested in the government's relationship with religion.

I. Factual Background

In 2001 the White House Office of Faith-Based and Community Initiatives (the "Office") was created pursuant to an executive order issued by President Bush.⁵ The Office's purpose was to make sure that "'private and charitable community groups, including religious ones . . . have the fullest opportunity permitted by law to compete on a level playing field.'"⁶ In addition, the President created several Executive Department Centers for Faith-Based and Community Initiatives (the "Centers"), which had the purpose of ensuring that faith-based groups maintained eligibility for federal financial support. The Office and Centers were funded with general congressional appropriations.⁷

Freedom from Religion Foundation, Inc., (the "Foundation"), an organization opposed to government endorsement of religion, filed suit against the directors of the Office and Centers in the United States District Court for the Western District of Wisconsin, claiming the Office and Centers violated the Establishment Clause⁸ by promoting religious programs over secular ones.⁹ Specifically, the Foundation contended that the directors organized conferences where faith-based organizations were "'singled out as being particularly worthy of federal funding . . and the belief in God [was] extolled as distinguishing the claimed effectiveness of faith-based social services.'"¹⁰ The Foundation asserted standing as federal taxpayers opposed to the use of taxpayer funds to advance religion. The district court dismissed the Foundation's claims for lack of standing, finding that claims based on taxpayer standing are limited to challenges against exercises of congressional power, not executive power.¹¹

A divided panel of the United States Court of Appeals for the Seventh Circuit reversed the district court's ruling and held that the Foundation had standing as federal taxpayers. According to the panel, the programs provided a basis for taxpayer standing because they were ultimately financed by congressional appropriations, even if not according to a specific congressional mandate. Subsequently, the court denied en banc review.¹² The United States Supreme Court granted certiorari to resolve the issue of whether a taxpayer has standing to challenge executive expenditures funded by general congressional appropriations.¹³ Ultimately, the Court reversed and held that the Foundation lacked standing to bring the claims.¹⁴

II. Legal Background

A. Introduction

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion."¹⁵ Before the Establishment Clause was interpreted by the Supreme Court, some scholars believed that "at the time of the adoption of the [C]onstitution, and of the amendment to it, . . . the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state."¹⁶ In one of the earliest cases concerning the Establishment Clause, the Supreme Court rejected this interpretation and concluded that the Establishment Clause "was intended to erect 'a wall of separation between Church and State.'"¹⁷ This separation was subsequently described by the Court as "far from being a 'wall,' [but] a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."¹⁸

One such circumstance is the issue of standing, which is a procedural device used by courts to dismiss cases regardless of their merit. Depending on whether the Court interprets the test for standing broadly or narrowly, standing can be generally available to plaintiffs or only available in unique circumstances. Consequently, standing has had a substantial impact on the development of Establishment Clause jurisprudence, and the Court has struggled over the years to develop a satisfactory test to determine the Establishment Clause standing requirements. The Hein case is the Court's latest attempt to define standing.

B. Taxpayer Status and Standing

In Frothingham v. Mellon,¹⁹ decided in 1923, the Supreme Court considered for the first time whether an individual's status as a federal taxpayer was enough to maintain standing in a suit challenging the constitutionality of federal appropriations.²⁰ In Frothingham the plaintiff challenged a federal statute that provided congressional funding to state agencies for the purpose of reducing maternal and infant mortality and protecting the health of mothers and infants.²¹ The plaintiff, an individual taxpayer, alleged that "the effect of the statute will be to take [the plaintiff's] property, under the guise of taxation, without due process of law."²² In determining whether it had jurisdiction, the Court explained that it could review acts of Congress "only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act."²³ The Court concluded that an individual's status as a federal taxpayer does not by itself establish standing; otherwise, the courts would be flooded with claims from millions of taxpayers challenging "every other appropriation act and statute whose administration requires the outlay of public money."²⁴ Nevertheless, rather than totally barring federal taxpayers from ever challenging the constitutionality of federal appropriations, the Court articulated a standard to determine whether a taxpayer has standing:

The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement,

and not merely that he suffers in some indefinite way in common with people generally.²⁵

Applying this standard to the plaintiff's claim, the Court held that the plaintiff did not identify a direct injury and dismissed the case for lack of standing.²⁶

C. Federal Taxpayers and the Establishment Clause

In Doremus v. Board of Education,²⁷ the Court applied the Frothing-ham standard in a case in which the plaintiffs alleged that a statute violated the Establishment Clause.²⁸ The New Jersey statute at issue in Doremus required the reading, without comment, of five verses of the Old Testament of the Bible at the beginning of each public school day.²⁹ In applying the Frothingham standard, the Court elaborated on the kind of injury a taxpayer must demonstrate: "a direct dollars-and-cents injury."³⁰ The Court held that even when the taxpayer is primarily motivated by a religious interest, he or she must possess a "financial interest that is, or is threatened to be, injured by the unconstitutional conduct" to establish standing.³¹ In Doremus the Court could not identify a direct financial injury and dismissed the plaintiffs' claim for lack of standing.³²

In Flast v. Cohen,³³ the Court considered another statute that allegedly violated the Establishment Clause.³⁴ In Flast the plaintiffs complained that funds appropriated under a federal statute were being used improperly to finance instruction in parochial schools. The Government encouraged the Court to adopt a position that absolutely barred taxpayer suits challenging the validity of federal spending programs.³⁵ In rejecting this position, the Court identified circumstances when a taxpayer would be "a proper and appropriate party to seek judicial review of federal statutes."³⁶ According to the Court, federal taxpayers maintain standing to challenge federal spending programs by fulfilling a two-pronged test.³⁷

The first prong identified in Flast required the taxpayer to "establish a logical link between [his or her] status [as a taxpayer] and the type of legislative enactment attacked."³⁸ The Court explained that this prong reinforced the principle that taxpayers must identify a financial injury and thus were limited to challenges against exercises of congressional power under the Taxing and Spending Clause.³⁹ The direct financial injury the Court identified in this case was that the taxpayer's "tax money [was] being extracted and spent in violation of specific constitutional protections against such abuses of legislative power."⁴⁰ Under the second prong, "the taxpayer must establish a nexus between [the taxpayer's] status and the precise nature of the constitutional infringement alleged."⁴¹ Applying this test, the Court concluded that the taxpayers in Flast satisfied both prongs and had standing to maintain their challenge against the statute at issue.⁴²

Of particular importance to the Court in Flast was the plaintiffs' allegation that the expenditures violated...