What Does The Supreme Court’s Taxpayer Standing Decision Mean for Evolution Education?

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The Supreme Court today issued an important decision addressing when taxpayers may sue government for spending taxpayer money in ways that support religious groups. The Justices had been urged to overrule a long-standing case that gave taxpayers unique power to sue the government in such cases, and they did not; but they did sharply restrict the ability to challenge such expenditures in ways that may have a major impact in future cases addressing the conflict between creationism and evolution education. The case is Hein v. Freedom From Religion Foundation Inc., and you can read it online here.

First the background:

Article III of the Constitution limits the sorts of things federal courts may consider. They may not consider a case unless there is an “actual case or controversy.” This means that they may not issue so-called “advisory” opinions (opinions that merely discuss hypothetical legal issues). And this means that they may not address issues where none of the parties has a genuine injury, or where the injury that the plaintiff complains of is not the sort of injury courts are allowed to consider. This last one is important because a taxpayer whose money is taken from him and spent on something that is beyond government’s legitimate powers is unquestionably injured—but the Supreme Court held in the famous cases of Massachusetts v. Mellon, 262 U.S. 447 (1923), and Frothingham v. Mellon, 262 U.S. 447 (1923), that that is not the kind of injury that the courts can address. Personally, I think Mellon was wrongly decided and that, as Richard A. Epstein has argued, taxpayers ought to be allowed to sue the government under such circumstances. Nevertheless, in Mellon, the Court held that allowing such cases to proceed would open the door to too many lawsuits, since, after all, government so often spends money on things it’s not supposed to be doing.

There’s a major exception to Mellon, however, and that is when the government spends taxpayer money in ways that support religious institutions. In such circumstances, taxpayers do have standing, according to another important case, Flast v. Cohen, 392 U.S. 83 (1968). In Flast, the Court held that the Establishment Clause has a special relationship to the taxing power that justifies allowing taxpayers to sue over expenditures that benefit religious groups:

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, s 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.… Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, s 8.

392 U.S. at 102-03.

“Establishment,” after all, means government supporting religion in an official way, and for government to take money and transfer it to a religious group is therefore to officially support that religious group. Unlike other contexts, the injury itself is completed upon the transfer. In other cases, say, where the government is spending taxpayer money on unauthorized military projects, there are really two kinds of injury involved: the ultra vires action of spending on military action and the ultra vires action of taxing. Again, I think this distinction is unwarranted, but the Court in Flast explained that other kinds of ultra vires action are more general injuries, while spending to support a religious group is more specific: “one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Id. at 103. The framers were particularly concerned “that religious liberty ultimately would be the victim if government could employ its taxing and spending powers to aid one religion over another or to aid religion in general,” and therefore they drafted the Establishment Clause to act “as a specific bulwark against such potential abuses of governmental power, and that clause of the First Amendment operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, s 8.” Id. at 103-04.

Today’s decision in Hein, however, sharply limits the Flast exception. In Hein, an atheist group sued the government for diverting money to certain “faith-based” charitable institutions. They complained that their tax money was going to support religious groups, in violation of the Establishment Clause. The Court, however, found that they did not have standing. The decision is one of those complicated plurality decisions, so the breakdown is as follows: Justice Alito, Chief Justice Roberts, and Justice Kennedy wrote a plurality decision; Kennedy also wrote a decision of his own. Justice Scalia wrote another decision which disagreed with their theory but came to the same conclusion—and Justice Thomas joined in that. Justice Souter, Stevens, Ginsburg, and Breyer all dissented. Thus none of these decisions has binding precedential value, but of course lower courts will consider them in the future.

The Alito/Roberts/Kennedy opinion holds that the Flast exception does not apply because Flast only applies to specific actions by Congress to tax, for the benefit of a religious organization. The Flast case only addressed “a specific congressional appropriation…undertaken pursuant to an express congressional mandate.” (Slip op. at 13). This established the link between the funding decision and the taxpayer’s Establishment Clause injury. But in this case, the funding directed to “faith-based organizations” was made out of the Executive’s discretionary budget: that is, Congress didn’t specifically choose this benefit; instead it transferred money to the President who chose whom to distribute it to, in lump-sum payments. Thus there is no direct link between Congress’ funding decision and the Establishment Clause injury. Now, this is an important point: Alito and his colleagues are not saying that the funding doesn’t violate the Establishment Clause; they’re merely saying that, because the money comes from discretionary Executive funding, rather than from a direct congressional appropriation, such establishment does not injure the taxpayer in a specific enough way to authorize the taxpayer to bring a lawsuit.

This distinction seems awfully arbitrary, but the plurality “reject[s] the view that taxpayer standing ‘extends to “the government as a whole, regardless of which branch is at work.”’” (Slip op at 18-19, quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 484 n. 20 (1982)). To allow taxpayers to invoke the Flast exception with regard to discretionary Executive branch spending as well as to Congressional spending would “effectively subject every federal action—be it a conference, proclamation or speech—to Establishment Clause challenge by any taxpayer in federal court. To see the wide swathe of activity that [this] proposed rule would cover, one need look no further than the amended complaint in this action, which focuses largely on speeches and presentations by Executive Branch officials.” (Slip op. at 20). The Congress ultimately controls all federal funding, so to allow suits over any federal dollars spent in ways that support religion would mean that even the most minor references to religion, such as in the State of the Union Address, might be challenged in court. “Suppose that it is alleged that a speech writer or other staff member spent extra time doing research for the purpose of including ‘religious imagery’ in a speech.” (Slip op at 22.) Alito, Kennedy, and Roberts then go on to reject the argument made by some that Flast itself should be overruled.

This argument is made by Justices Scalia and Thomas. They divide the kinds of taxpayer injuries into two kinds: “wallet injury,” which is when the taxpayer suffers a tangible injury, such as losing more money to taxation than he otherwise would, and “psychic injury,” which occurs when a person suffers “mental displeasure that money extracted from him is being spent in an unlawful manner.” (Slip op. at 2.) Federal courts have rejected “wallet injury” cases because they have held that plaintiffs “cannot satisfy the traceability and redressability prongs of standing.” (Id.) Psychic injury, however, has been recognized in cases such as Flast. “Wallet Injury could not possibly have been the basis for [Flast], since the taxpayers in Flast were no more able to prove that success on the merits would reduce their tax burden than was the taxpayer in Frothingham. Thus, Flast relied on Psychic Injury.” (Slip op. at 6). But the problem with psychic injury is that just as some people are offended by seeing their money support religion, so others are offended by seeing their money support military spending, or welfare spending. As to the argument that the Establishment Clause has some unique relationship to the taxing power—so that the injury from unconstitutional expenditure is more direct than from other kinds of ultra vires spending—Justices Scalia and Thomas respond that “[i]t is impossible to maintain that the Establishment Clause is a more direct limitation on the taxing and spending power than the [non-Establishment] constitutional limitation invoked in Frothingham, which is contained within the very provision creating the power to tax and spend.” If the Establishment Clause limits the use of taxpayer money in a way that allows taxpayers to sue, so do such limitations as the General Welfare Clause—which prohibits government from spending money in ways that confer special and unique, as opposed to general and public, benefits. Yet in Frothingham the latter category was ruled off limits and in Flast the former was considered fair game. Scalia and Thomas find that this was a violation of “[c]oherence and candor.” (Slip op. at 8).

They go on to detail at length the many cases in which courts have tried to dodge between the kinds of psychic injuries that do, and that do not, confer standing. These cases are unconvincing because “there are only two logical routes available to this Court. We must initially decide whether Psychic Injury is consistent with Article III”—that is, whether it’s the kind of injury courts can consider. “If it is, we should apply Flast to all challenges to government expenditures in violation of constitutional provisions that specifically limit the taxing and spending power; if it is not, we should overturn Flast..” (Slip op. at 11) Scalia and Thomas then complain that the plurality decision’s distinction between direct congressional spending and discretionary Executive spending is untenable because where the money comes from “has absolutely no relevance to the Article III criteria” for establishing whether the injury is the kind that courts can take into consideration. (Slip op. at 12).

In his separate opinion, Justice Kennedy says that “Flast is correct and should not be called into question,” (Slip op. at 1)—but he does not actually make any argument in support of the case, and does not respond to any of Scalia and Thomas’ points. Instead, the dissenting opinion by Justices Souter, Stevens, Ginsburg and Breyer argues that Flast was right—and that the distinction between specific congressional spending decisions and discretionary Executive spending is untenable.

The kernel of the dissent is that spending which supports religion is different than any other kind of unauthorized government spending. The Establishment Clause was written specifically to prevent funding that would support religious institutions, because such spending “implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the ‘Psychic Injury’ that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported.” Spending in support of religion is distinct “from one in which a taxpayer sought only to air a generalized grievance in federal court.” (Slip op. at 2-3).

Of course the nature of that funding—whether by specific Congressional authorization or discretionary Executive funds—makes no difference in this regard. One way or the other, taxpayer money is being spent to promote religion, and this causes taxpayers to suffer an injury. “[I]f the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.” (Slip op. at 4).

What does this mean? The only clear holdings are (1) that there is no standing in this case for the Freedom from Religion Foundation, and (2) that Flast will remain on the books. But how will the distinction between specific appropriations and discretionary Executive spending fare? Justices Scalia and Thomas and the dissenters all reject the tenability of this distinction, so I don’t think it will survive. What we have now is essentially a 3-2-4 case which sets no clear precedent except that the Freedom from Religion Foundation has not stated a clear and direct injury.

This is important in the creationism context because many suits against creationist government schools are brought on the grounds set out in Flast. If the distinction between discretionary spending and specific appropriations lasts—and if it is extended down to the local level—it could be more difficult to bring such lawsuits. Now, parents will continue to have strong grounds for challenging the education of their children. But the situation of taxpayers will be different. Funding for the purchase of school textbooks, or field trips, or whathaveyou is generally taken from a state’s funding provisions for schools, which is spent then at the discretion of various agents down the line: the school board, the agent in charge of class materials, and so forth. If the plurality’s theory prevails, it’s hard to see how a taxpayer could challenge the choice of a school board agent to purchase Of Pandas And People or other creationist tracts.


Let’s see if I have this right. Bush wants to use taxpayer dollars to fund certain religious efforts, which (of course) just happen to be part of his own personal religious faith. The Constitution prohibits this sort of thing, very specifically. The Court, primarily Bush’s recent appointees, have determined that the citizens of the country lack any standing to contest unconstitutional religious funding by their own government.

The rationalization for this determination is so flimsy and “untenable” that it’s obvious to the veriest dunce that the Court’s majority WANTED to fund exercises of their own faith with tax money, and found an excuse to do so however far-fetched. The gist of the decision seems to be a “camel’s nose” argument, that if we permit citizens to use the courts to object when government violates the constitution, why, they’re likely to complain every time it happens, which will overload the courts and bog down the proper business of government (part of which, quite clearly, is to fund the religious faith of the President and His Appointed Justices).

Well, it’s not like we couldn’t see it coming, when Roberts and Scalito were nominated…

Yes, the only practical solutions to this dilemma are legislative.

Roberts, Alito, and Thomas are young. But other members of the court may be replaced in the near future.

In situations like this, the appointment of even the most moderate milquetoast centrists in place of retiring members could result in an eventual six sane to three anachronistic ideologues rebalance in the next fifteen years or so. The broken supreme court does not need an influx of progressives to Washington to fix it; this particular problem can be handled if we are merely able to prevent a “perfect storm” of right wing ideologue president and gutless right wing rubber stamp congress from occurring again in the near future. (Note - although often applied to the House of Representatives, the term “congress” actually includes both the House and the Senate.) I’m not saying this will be easy, but it is doable.

(No tragic, hand-wringing soliloquies on the impenetrable stupidity of the American people, the hopelessly corrupt nature of the system, and the impossibility of any future improvements, in contrast to your own unfairly doomed moral superiority, please. You may be right, but I already read my quota of those for today.)

Likewise, at the schoolboard level, there is still plenty that can be done, including, of course, paying attention to elections and encouraging sane, pro-science candidates to run, so that the issue is moot.

Harold Wrote:

The broken supreme court does not need an influx of progressives to Washington to fix it; this particular problem can be handled if we are merely able to prevent a “perfect storm” of right wing ideologue president and gutless right wing rubber stamp congress from occurring again in the near future.

That has been pretty much the essence of it all during this current administration. Of course, I am sure, some of the right wing ideologues would offer similar complaints about the FDR or JFK or LBJ administrations.

A lot of it is due, unfortunately, to a stupid electorate. And much of that is due to their daily diet of carefully manipulated and manufactured misinformation. Organizations that spread this misinformation are well-funded by the likes of Howard Ahmanson and other fringe characters that have their own political agenda.

The ID/creationism vs. evolution war is fairly representative of the techniques used to manipulate public opinion, and that is why it is important to study it and keep the tactics of the ID/Creationists in the spotlight. At least in this arena there is a clear trail of distortion that can be compared with the actual record of science. One would hope that this could be used to help educate the public about how it is being manipulated. What perhaps could be emphasized even further is how to transfer this awareness to other arenas as well (e.g., foreign policy, reasons for going to war, climate change, overpopulation, and all the other things that are going to become more pressing in the coming years).

Then there is the other issue of what has happened to the supposed “watchdog” of our government, namely, the press. Why are they constantly reporting so breathlessly on such inane crap while there are so many more important issues that people need to know about in order to make informed decisions? It is clear they are being controlled and manipulated also. Nobody wants to ask the hard questions we in the science community believe should be asked in the way science has, supposedly, taught civilization to ask. What the hell have we learned? Sometimes you wonder whether is is even worth giving a crap.

Thanks so much for this Tim, this stuff would be impossible to understand otherwise.

One comment: In Kitzmiller the plaintiffs claimed standing based on the fact that their children were the schools and subject to the ID curriculum/policy. I don’t think standing as taxpayers was invoked, unless maybe secondarily.


Nick Wrote:

I don’t think standing as taxpayers was invoked, unless maybe secondarily.

I didn’t see any of that either, but the taxpayers sure got stuck with the bill.

It seems to be a particular part of the ID/creationist strategy to arrange things such that if they are sued and lose, the taxpayers pick up the tab. That may be part of the reason for trying to stack school board and boards of education with their kind.

Does anyone know of cases in which the ID/creationists ate most of the cost of their losses? I suspect it isn’t very often.

That’s right, standing for parents would still remain (keeping in mind the restrictions of Newdow). And in public schools, parents are probably the most common litigants, but there are some cases where people have predicated their standing on taxpayer grounds only. Some of the many plaintiffs in McLean, for example, were taxpayers only. 529 F.Supp. 1255, 1257 (D.C. Ark. 1982).

Prof. Bainbridge writes :

http://www.professorbainbridge.com/2007/06/conservative-wi.html Wrote:

Hein v. Freedom from Religion Foundation doesn’t change First Amendment Establishment Clause doctrine or the so-called wall of separation. Instead, it’s just a standing case. And it is well-established that taxpayers qua taxpayers generally do not have standing to challenge federal spending programs. Although there is an Establishment Clause exception to that rule, the plurality correctly indicates that it needs to be interpreted narrowly and the concurrence makes a convincing case for getting rid of it.

Care to comment?

Mike Elzinga:

“Does anyone know of cases in which the ID/creationists ate most of the cost of their losses? I suspect it isn’t very often.”

You are correct. The Establishment Clause restricts the government, not private persons. Creationists have the 1st Amendment right to lobby school boards all they want to inject their religious beliefs into science classes; no violation of the Constitution occurs until the school board or the state legislature elects to do so. Having the taxpayers foot the bill is a painful but effective lesson for them. I’m sure a big reason why the creationists were swept off the Dover school board in the 2005 election was because of taxpayer outrage at how their money was being squandered. Board members and legislators typically have immunity from suit for how they vote on public policy. Thus is also a good thing, because otherwise, creationists would be threatening to sue school board members individually if they allow evolution to be taught, and the mere threat of such a suit would be sufficient to sway the vote of many board members.

Let’s see if I have this right. Bush wants to use taxpayer dollars to fund certain religious efforts, which (of course) just happen to be part of his own personal religious faith.

I think a more relevant point is that those certain religious efforts correspond to a large voting bloc, not that they reflect Bush’s own alleged religious belief.

Mr. Olson: My point in the post was simply to explain the ruling and what it might mean for future Establishment Clause lawsuits, not so much to describe my own views. Personally, I think the rule against taxpayer standing is itself nonsense and ought to be eliminated. As I indicated, I agree with Prof. Epstein that any and all taxation that is used to fund unconstitutional, ultra vires action is, indeed, an injury that ought to be redressable in federal court. I have no doubt this would swamp the courts with litigation, because our government insists on ignoring the Constitution, but I agree with Justice Souter (in this case, although he is inconsistent on this point) that this is not a good reason to bar litigation. So I do not find the concurrence in this case convincing and while it is well established that taxpayers don’t have standing, I think that is wrong.

Anonymous: Again, I agree that a hypothetical legal issue can be a controversy and, as I’ve indicated, that the rule against taxpayer standing is itself not warranted even by a strict reading of “cases and controversies.” If I’m taxed to support an ultra vires action, that is simply a taking of my property without due process of law (since an ultra vires government action is not “law,” but a mere act of coercion). The history of the rule against advisory opinions, incidentally, is a long and interesting one. During the Washington Administration, President Washington ordered the seizure of American vessels that were being outfitted to participate in support of France in the war between France and England. Secretary of State Jefferson wrote a letter to the Supreme Court asking about the constitutionality of such a thing, and the justices responded in a letter that it was not empowered to render advisory opinions, that doing so would implicate separation of powers concerns, and so forth. So it’s a long-standing rule.

I do disagree with the idea that, as you express it, “there is no constitutional separation of military spending or welfare spending and state.” It’s true that there’s no constitutional separation of military spending and state–Article I section 8 specifies explicitly that Congress shall equip the military. But there certainly is a separation of welfare spending and state: the Constitution provides no authority for the federal government to engage in transfer payments so as to benefit the poor. The “general welfare” clause requires that expenditures be for general public benefits, not for the specific benefit of particular people (even of a large group of mendicants). Since Article I section 8 is an exhaustive list of federal powers (“all legislative powers herein granted”–not “all legislative power”), the Constitution itself acts as a separation of state and ___ (with that blank filled with anything that is not specified in Article I section 8). This gets into a political debate for which I have no time, and of course I am well aware that it is counter to the majority view, which is that the federal government can simply do whatever makes people feel good. But that’s my view; I think the taxpayer in Frothingham should have won his case.

Also, you say that “no monkey trial was framed as a taxpayer suit.” So far as I know that is correct, but as I pointed out earlier, many of the plaintiffs in McLean did rely solely on taxpayer standing. So it is conceivable that there would be such cases.

“Suppose that taxpayer funds had been used to purchase [creationist] books for the school library.… Are you saying that taxpayers would not have standing to challenge the use of tax money to purchase those books…?”

The plurality opinion at least suggests such an outcome to me. If Flast-style standing exists only for specific legislative appropriations–indeed, specific Congressional appropriations–then I can’t see how a taxpayer could have standing to sue when undifferentiated federal grants to local school boards are then filtered through several levels of discretionary executive decision making (first the school board, then the instructional materials director, and perhaps other levels of discretionary decision making) eventually go to the purchase of religious textbooks. You’d just have to be a parent to sue at all, I would imagine.

“Why should taxpayer standing be an issue in some establishment clause cases but not others?” Well, again, I don’t think there should be a bar against taxpayer standing at all. The fact that one was invented by the Supreme Court in the ’20s, to insulate the federal government’s unconstitutional expansion during that era, necessitated the creation of an exception later on in Flast. This is a common pattern. We see it also in the “penumbras from emanations” theory: first the court errs by creating an unwarranted presumption of constitutionality for laws, then it is forced to come up with an exception lest that erroneous rule swallow up constitutional law. So it creates the double standard whereby some rights are preferred over others (travel yes, property no). Eventually you get emanations and penumbras because the Court senses, but does not wish to confront, the inevitable consequences of its now long-standing error. Again, that is my own interpretation, and I understand that others view things differently. But the bottom line is that I agree that taxpayers are injured in a legally recognizable way and ought to be able to sue.

Incidentally, one other thing that always struck me as silly about the bar on taxpayer standing: your vote, which counts for virtually nothing in any nationwide election, is sufficient to confer standing on you. But your tax dollars, which are a very substantial portion of your property every year, taken from you without your consent, is not. It seems to me that some sense of balance between these two things ought to be maintained.

Update: “Anonymous” has been identified as Larry Fafarman, who has been banned from PT for his many abuses. PT is, of course, private property and its owners (of whom I am not one) determine the rules to be followed on it. Thus his comment has been removed. Doubtless he will cry “censorship,” but as he has his own blog, those interested in his views may go elsewhere.

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This page contains a single entry by Timothy Sandefur published on June 25, 2007 1:07 PM.

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